Car v Revilo Holdings Pty Ltd Trading as Cranes and Rigging Services
[2019] FCCA 2878
•10 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAR v REVILO HOLDINGS PTY LTD TRADING AS CRANES AND RIGGING SERVICES | [2019] FCCA 2878 |
| Catchwords: INDUSTRIAL LAW – Application for payment of wages. |
| Legislation: Fair Work Act 2009 (Cth), ss.45, 524, 548, 570 Federal Circuit Court of Australia Act 1999 (Cth), s.75 Federal Circuit Court Rules 2001 (Cth), r.21.02(1) Occupational Safety and Health Act 1984 (WA), ss.19, 20 |
| Cases cited: Automatic Fire Sprinklers v Watson [1946] HCA 25; (1946) 72 CLR 435; [1946] ALR 390 |
| Applicant: | ERIC TRISTAN CAR |
| Respondent: | REVILO HOLDINGS PTY LTD T/A CRANES AND RIGGING SERVICES |
| File Number: | PEG 576 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 4 April 2018 |
| Date of Last Submission: | 4 April 2018 |
| Delivered at: | Sydney (via video-link to Perth) |
| Delivered on: | 10 October 2019 (by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth) |
REPRESENTATION
| Counsel for the Applicant: | Mr J Atkinson |
| Solicitors for the Applicant: | Denmark Legal |
| Counsel for the Respondent: | Mr W Milward |
| Solicitors for the Respondent: | Warren Milward Barrister & Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 576 of 2015
| ERIC TRISTAN CAR |
Applicant
And
| REVILO HOLDINGS PTY LTD T/A CRANES AND RIGGING SERVICES |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application (“Application”) filed by the applicant, Eric Tristan Car (“Mr Car”) regarding a small claim under s.548 of the Fair Work Act 2009 (Cth) (“FW Act”) which seeks payment of allegedly non-paid wages in the sum of $11,800 and $1,036 on account of unpaid superannuation benefits. The Application was filed together with a “Form 5 Small claim under the Fair Work Act 2009.” The respondent, Revilo Holdings Pty Ltd t/a Cranes and Rigging Services (“Revilo Holdings”), and Mr Car’s previous employer opposes the Application in entirety and seeks costs of the proceeding.
Background
Factual Background
The relevant factual background to the Application is as follows:
a)in February 2012, Revilo Holdings became a registered company operating a business and Mr Clinton David Oliver (“Mr Oliver”) was the sole director of Revilo Holdings and at all material times the supervisor of Mr Car;
b)Mr Car had previously worked for Mr Oliver at a different company, and Mr Car commenced employment with Revilo Holdings, under an oral agreement with no written contract of employment ever produced, as an advanced rigger in February 2012;
c)notwithstanding there was no written contract of employment, Mr Car’s employment was governed by the Mobile Crane Hiring Award 2010 (“Crane Award”) as a full time weekly hire employee working 40 hours per week and overtime as required, paid an annual salary of $72,800 (paid in weekly instalments at $1,400 gross per week), entitled to an employee superannuation contribution of 9.25%, and responsible for his own travel to and from work sites each day;
d)on 6 February 2014 Mr Car commenced annual leave and returned to work on 4 March 2014 upon which Mr Oliver directed Mr Car to undertake a drug and alcohol screening test, and Mr Car admitted to Mr Oliver he would not pass the test though agreed to attend the test the following day;
e)Mr Car attended the test on 5 March 2014 and returned to work later that day, while on 6 March 2014 Mr Oliver received written confirmation the applicant had tested positive and further analysis was required;
f)on 7 March 2014 the test results confirmed Mr Car had tested positive, and Mr Oliver advised him he was required to leave work and upon providing a negative drug and alcohol screening test result he could return to work though during such time Revilo Holdings would not, and did not, pay Mr Car;
g)on 24 April 2014, following Mr Car claiming Revilo Holdings had unlawfully stood him down and seeking legal advice, Revilo Holdings via a solicitor wrote to Mr Car requesting he attend a further test so as to ascertain his capacity to return to work. Mr Car attended this further test on 28 April 2014 and returned positive results;
h)on 5 May 2014 Mr Oliver met with Mr Car to discuss the positive test results, and at this time Mr Car provided a test result showing he had returned a negative result, and Mr Oliver allowed Mr Car to return to work that day, and issued a final warning and required as part of an ongoing management plan that Mr Car comply with a drug testing program following his return; and
i)on 15 July 2014 Mr Car resigned his employment with Revilo Holdings in light of Revilo Holdings failing to pay Mr Car his base salary for the 8 weeks he did not work.
The Court does not find it necessary to resolve many of the minor inconsistencies in the factual accounts as it is of the view that these are not material to the issue, namely whether Mr Car was entitled to his base salary during the 8 week period he did not work.
Revilo Holdings Pty Ltd
It is necessary for the Court to outline some aspects of Revilo Holdings Pty Ltd business operations before proceeding further.
Revilo Holdings provides rigging and associated services to crane companies, most often these services are “heavy lifts” whereby objects close to the maximum rating of the crane are lifted at a very short radius. Revilo Holdings operated from a yard shared with United Crane Hire, though work was required to be undertaken for various clients at various sites and depots across the Perth Metropolitan area. Mr Car held a High Risk Licence (“Licence”) pursuant to the Occupational Safety and Health Act 1984 (WA) (“OSH Act”) as all riggers are required to do, and he maintained this licence in all relevant periods.
The majority of work undertaken by Revilo Holdings’ business was as a subcontractor to United Crane Hire which had its own policies and procedures its employees were to comply with, including drug and alcohol policies. Upon undertaking work with other clients, employees of Revilo Holdings were required to undergo an induction with the respective clients which included the client’s requirements with respect to the drug and alcohol policy of the respective client in order to work on the relevant site. Revilo Holdings did not have its own written drug and alcohol policy or agreement with employees, though in the shared premises with United Crane Hire the drug and alcohol policy of United Crane Hire was clearly displayed in the “crib hut” Revilo Holdings used as a break room.
It was common for many crane companies to enforce drug and alcohol policies to ensure occupational health and safety on work sites. Many companies use the Australian Standard AS4308 (“AS4308”) to assess employees, and where an employee exceeds the relevant standard they are unable to work on the site. On the evidence of Mr Oliver, he took a “zero tolerance approach” whereby employees were unable to attend work with a detectable level of drugs and alcohol to ensure his business complied with the requirements and standards of the various clients and sites as required.
Evidence
The evidence provided in this matter is limited to three affidavits:
a)affidavit of Clinton David Oliver sworn 1 February 2016 (“First Oliver Affidavit”);
b)affidavit of Clinton David Oliver sworn 31 October 2017 (“Second Oliver Affidavit”); and
c)affidavit of Eric Tristan Car affirmed 17 November 2017 (‘Car Affidavit”).
The affidavits contain a small number of factual inconsistencies, but both Mr Car and Mr Oliver’s affidavits are similar as to chronology and events. At hearing both Mr Car and Mr Oliver were called to give evidence. The Court has read both the affidavits and the transcript of the hearing.
Crane Award
Mr Car has made this Application on the grounds Revilo Holdings has breached cll.19 and 20 of the Crane Award, namely failure to pay wages for the eight week period he did not work. A contravention of a modern award is a civil remedy provision: FW Act, s.45. There wasno issue raised as to whether Mr Car was covered by the Crane Award, and the Court accepts that Mr Car was engaged as a rigger under the Crane Award, and should Mr Car’s claims prove successful Revilo Holdings will be in contravention of s.45 of the FW Act.
Clauses 19.1 and 20.2 of the Crane Award are as follows:
19.1 Methods of payment
Wages will be paid in cash, cheque or direct transfer into the employee’s bank (or other recognised financial institution) account either weekly or fortnightly.
20.2 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.
OSH Act
Revilo Holdings has sought to rely upon the OSH Act s.19 in support of it opposing the Application:
19. Duties of employers
(1) An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall —
(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards; and
(b) provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and
(c) consult and cooperate with safety and health representatives, if any, and other employees at the workplace, regarding occupational safety and health at the workplace; and
(d) where it is not practicable to avoid the presence of hazards at the workplace, provide the employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and
(e) make arrangements for ensuring, so far as is practicable, that —
(i) the use, cleaning, maintenance, transportation and disposal of plant; and
(ii) the use, handling, processing, storage, transportation and disposal of substances, at the workplace is carried out in a manner such that the employees are not exposed to hazards.
(2) In determining the training required to be provided in accordance with subsection (1)(b) regard shall be had to the functions performed by employees and the capacities in which they are employed.
20. Duties of employees
(1) An employee shall take reasonable care —
(a) to ensure his or her own safety and health at work; and
(b) to avoid adversely affecting the safety or health of any other person through any act or omission at work
(2) Without limiting the generality of subsection (1), an employee contravenes that subsection if the employee —
(a) fails to comply, so far as the employee is reasonably able, with instructions given by the employee’s employer for the safety or health of the employee or for the safety or health of other persons; or
(b) fails to use such protective clothing and equipment as is provided, or provided for, by his or her employer as mentioned in section 19(1)(d) in a manner in which he or she has been properly instructed to use it; or
(c) misuses or damages any equipment provided in the interests of safety or health; or
(d) fails to report forthwith to the employee’s employer —
(i) any situation at the workplace that the employee has reason to believe could constitute a hazard to any person that the employee cannot correct; or
(ii) any injury or harm to health of which he or she is aware that arises in the course of, or in connection with, his or her work.
(3) An employee shall cooperate with the employee’s employer in the carrying out by the employer of the obligations imposed on the employer under this Act.
The Occupational Health and Safety Regulations 1996 (WA) reg.6.2 and Sch.6.3, Div.3, cl.5 provides that dogging and rigging work are classed as “high risk work.”
Mr Car’s Submissions
The following submissions were made by Mr Car:
a)on 7 March 2014, Mr Oliver told Mr Car that he had ‘failed a drug test’, had to leave the workplace and did not discuss the results of the drug test any further nor provide an explanation to Mr Car as to how and when Mr Car would be able to resume his duties ;
b)there is no evidence that Mr Car ever attended work in an intoxicated state or under the influence of any illicit substance nor that Mr Car attended work in a condition that was unsafe nor that he was unable to safely and competently perform his duties at any stage;
c)on 28 April 2014, Revilo Holdings requested Mr Car attend a drug test and the result of the drug test demonstrated the presence of amphetamines in the Mr Car’s urine above the Australian standard however, this drug test was taken at a time when the applicant was not working;
d)at all material times Mr Car remained employed by Revilo Holdings and was ready, willing and able to safely and competently perform the duties required of his position and continue to follow the directions of his employer. It was open to Revilo Holdings, if it considered Mr Car unable or unwilling to perform the duties required of the position to either take disciplinary action or terminate his employment but it did not do either;
e)there is no basis in the Crane Award, nor under any State or Commonwealth legislation, nor under the common law for the Revilo Holdings to stand Mr Car down without pay because of a positive drug test, and under cl.19.1 of the Crane Award, while Mr Car remained employed Revilo Holdings was required to pay Mr Car his usual wages in the usual;
f)the High Court case of Automatic Fire Sprinklers v Watson [1946] HCA 25; (1946) 72 CLR 435; [1946] ALR 390 ( “Watson”) sets out the relevant law in relation to an employer’s obligation to pay wages whilst an employee remains in the service of the employer. In the present case Revilo Holdings did not dismiss Mr Car and accordingly the he remained in Revilo Holdings service thus pursuant to the decision in Watson, he was entitled to be paid his usual salary while the service continued;
g)in Sullivan v North West Crewing Pty Ltd [2015] FWC 8559 it was held the dismissal of an employee for a positive drug test was not unreasonable:
i)because of the employer’s drug and alcohol policy, the employee would have known that a positive test would result in disciplinary action against him;
ii)that a positive urine drug test result does not mean the employee is impaired by drugs;
iii)it was the breach of a reasonable drug and alcohol policy combined with other evidence, including admissions by the employee that he had been under the influence of drugs at work, that was the misconduct justifying the dismissal, not the presence of a positive test for amphetamines; and
iv)that, even in a safety critical industry, “it is reasonable that employees should be warned after a first positive test that their behaviour is unacceptable and be given an opportunity to seek rehabilitation, counselling or to change their behaviour”;
h)there are numerous cases where an employee has been held as fairly dismissed even on a first strike instance though the common thread in those cases is that the circumstances justifying the dismissal were contravention of a reasonable drug and alcohol policy and that the employee was aware or ought to have been aware of the serious consequences for his or her employment in providing a positive drug test. It was not the existence of the positive drug test in itself. There was no such policy in the present case that the employee was contractually obliged to follow or that would have made him aware of the consequences of a positive test; and
i)there is likely to be an implied term of Mr Car’s employment contract that he was not to present for work impaired by drugs, but there is no evidence that Mr Car ever did so rather the evidence suggests that Mr Car performed his duties safely and competently at all times.
Revilo Holdings Submissions
Revilo Holdings made the following submissions:
a)Revilo Holdings is subject to the obligations imposed by the OSH Act, in particular those obligations include at OSH Act s.19, a duty to provide a safe place of work, and workers affected by drugs represent a risk to the safety and health of themselves, their colleagues and the employees of clients and other contractors working alongside the Revilo Holdings’ employees thus where an employee may be impaired by drugs an employer is legally obligated to ensure the employee does not present a hazard or risk to the safety and health of others;
b)Revilo Holdings undertakes work for a range of clients, many of whom have policies relating to drugs and alcohol which require Revilo Holdings’ employees to be negative for drugs and alcohol whilst working on their site, and they were entitled to require its employees to be negative for drugs and alcohol in order to safely perform their work and to meet its obligations to its clients;
c)Mr Car was not stood down by Revilo Holdings pursuant to s.524 of the FW Act but was advised that he was unable to meet the inherent requirements of his position, which included the ability to attend work without testing positive for drugs or alcohol and he was invited to return to work when he was able to safely perform the inherent requirements of his positon;
d)unless an employer waives the usual requirement of a contract of employment that an employee perform the full range of work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned or, at least, a readiness and willingness to do so. Csomore and Anor v Public Service Board of NSW [1996] 10 NSWLR 587 (“Csomore”) at 595 per Rogers J;
e)Mr Car, in testing positive to drugs, where Revilo Holdings was not only entitled and require to ensure that its employees would test negative for drugs and alcohol, was not ready, willing and able to perform his job as to be ‘ready’ is to have made the necessary preparations in order to complete the required task;
f)there is nothing in the Crane Award 2010 which supports a contention that Mr Car has an entitlement to receive pay without providing service or at least demonstrating an ability and willingness to work and there is no liability for wages and salary unless earned by service, even though the failure to serve is a consequence of the master’s wrongful act: Watson, CLR at 465 per Dixon J.
g)there is no basis for concluding that a term of Mr Car’s employment contract includes an entitlement to the payment of wages based on mere readiness and willingness and ability to work, rather the failure to perform work arose from directly from the conduct of Mr Car in:
i)attempting to perform high risk work on 5 March 2014 despite having drugs in his system, and subsequently being found unfit for work; and
ii)failing to provide the Revilo Holdings with a negative drug test between 5 March 2014 and 5 May 2014;
h)there was nothing unusual about Revilo Holdings’ decision to not pay Mr Car in respect of the period during which he was either unable to work, on account of the use of drugs, or non-compliant with the lawful and reasonable direction to advise Revilo Holdings as to when he was able to return to work, the applicable common law principle is that of no-work no pay;
i)the decision in Isturiz v Northside Community Service Limited [2016] FWC 4649 is supportive of the proposition that where an employee is unable to perform their duties, the principle of no work no pay, as enunciated in Watson, entitles an employer to suspend an employee without pay and makes clear that a worker, deprived of ability to work, even by the wrongful actions of his employer, is not entitled to make claim for wages, rather the remedy is for damages; and
j)whilst employees have been successful in obtaining such orders for damages, those circumstances have generally been limited to a failure by the employer to comply with an implied duty forming part of the contract of employment, such as the implied duty to provide a safe place of work, although this right is now underpinned by an equivalent legislative entitlement, further even if such a breach of contract were established, the limit of the damages flowing from the breach of the contract is the notice period payable by Revilo Holdings to Mr Car, being the two weeks required by the FW Act.
Consideration
Both parties referred to an array of authority from the Fair Work Commission whereby an employee has claimed to have been “unfairly dismissed,” for having failed a drug and alcohol test. Those authorities are irrelevant for present purposes as the issue before the Court is essentially a contractual one.
The work Mr Car was engaged in required a High Risk Working Licence, and it is manifest that the work he engaged in required a high degree of safety and care, and to obtain such a licence a person is required to undertake some form of training by a registered assessor and provider. For so long as Mr Car was had a positive drug test it would have been a breach of his duty as an employee to work as a rigger: OSH Act, s.20, and a breach of Revilo Holding’s duty under s.19(1) of the OSH Act to allow him to work. And that was the position when he tested positive on 4-7 March 2014 when, initially, Mr Car either admitted he would not return a negative test, and subsequently returned a positive test. From 4-7 March 2014 Mr Car was not ready or able to work because of his positive drug self-assessment or test. The Court finds that Mr Car was then told by Mr Oliver he could to return to work upon returning a negative drug test result. There is no evidence that Mr Car retuned a negative result until he underwent a further test on 28 April 2014, which he discussed with and advised Mr Oliver of on 5 May 2014. Mr Car was then permitted to work again with Revilo Holdings.
An employee is only entitled to wages under a contract of employment if they are ready, willing and able to work: Csomore; Watson, CLR at 465 per Dixon J. A rigger in a high risk job, such as Mr Car is certainly not ready and able to work if he has a current positive drug test. An award does not ordinarily require payment to an employee not ready and able to work: Csomore at 595 per Rogers J (subject of course to personal or sick leave which was not properly put in issue in these proceedings), and there was nothing pointed in the Crane Award which is at variance with that general principle. Mr Car was plainly not ready and able to work from 4-7 March 2014, and there is no evidence that he was ready, willing and able to work from 8 March 2014 to 4 May 2014. Mr Car did not attend for work during that time, or provide to Revilo Holdings a negative drug test result which might have indicated that he was ready, willing and able to work. In the circumstances Mr Car is not entitled to be paid under the Crane Award for the period claimed.
Conclusion and order
The Court has concluded that Mr Car has not made out his case for allegedly underpaid wages under the Crane Award. It follows that his application must be dismissed. There will be an order accordingly.
Prima facie, this is no costs matter: FW Act, s.570. Should either party wish to embark upon the difficult road of seeking costs, that party must file an application in a case and supporting affidavit: see Federal Circuit Court Rules 2001 (Cth), r.21.02(1).
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 10 October 2019
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