Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Wilson Fire Protection

[2017] FWC 2452

[2017] FWC 2452

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Wilson Fire Protection
(C2016/6180)

COMMISSIONER HUNT BRISBANE, 3 MAY 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] This decision, now edited, was given ex tempore at the conclusion of proceedings on 3 May 2017.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made application to the Fair Work Commission (Commission) pursuant to s.739 of the Fair Work Act 2009 to determine a dispute between four members it represents and their former employer, Wilson Fire Protection. The four members are:

• Mr Stephen Connor;



• Mr Christopher Ernst;



• Mr Billy Vogler; and



• Mr Darren Murray.

[3] The matter was first listed before the Commission on 14 November 2016 for a telephone conference, and then again on 12 December 2016. Directions were then issued for the filing of material, and the matter was heard before me today in an arbitrated hearing.

[4] Mr Craig Wilson is the principal of Wilson Fire Protection, the respondent. Despite being aware of the listing of the hearing, Mr Wilson did not attend the hearing. The last communication from Mr Wilson was on 12 April 2017, where Mr Wilson supplied two affidavits of former employees, Mr Shaun Coker and Mr Addam Ungaro.

[5] At the listed time for the hearing my Associate attempted to contact Mr Wilson. His calls were not answered. The Commission does not have contact details for Mr Coker and Mr Ungaro, despite requesting those details of Mr Wilson in correspondence sent to the parties on 28 April 2017.

[6] Mr Wilson did not file a witness statement, but did provide some information relevant to the financial distress of the respondent in the email of 12 April 2017. I decided against providing this information to the applicant on the basis that it contained a substantial amount of personal information relevant to Mr Wilson’s circumstances, and I have not relied on any information in the material.

[7] It is clear that the CEPU has, since at least September 2016, been attempting to recover from the respondent monies claimed to be owed to four members. The monies are said to be owed due to the employment of the respective members under enterprise agreements the respondent made with employees. The first agreement is the Wilson Fire Protection and CEPU Plumbing Division Union Collective Agreement 2011 – 2015. The agreement had a nominal expiry date of 31 October 2015, but continued until it was replaced on 22 September 2016 by the Wilson Fire Protection and CEPU Plumbing Division Fire Services Union Collective Agreement 2015 – 2019.

[8] Despite best endeavours to work with the respondent to secure payments under the two agreements, a substantial sum across the four employees is claimed to be owed.

[9] The matter to be determined by the Commission is if the respondent is obliged to pay to the former employees the monies claimed. The CEPU has not sought for the Commission to order the monies to be paid, as that is for a court of competent jurisdiction to determine. However, an arbitrated hearing before the Commission, examining the claims and determining whether an obligation exists or not should, it is hoped, will assist the former employees with claims before a relevant court. I understand it is the applicant’s desire that a finding by the Commission that some or all of the monies are owed assist the respondent to realise the stakes involved, and the day of reckoning to make good the payments to former employees is here.

[10] The CEPU has submitted that the alleged underpayments of entitlements put to this Commission are conservative. If that is the case, then the applicant on behalf of its members is not limited to the sum claimed in this dispute.

[11] During the hearing I heard evidence of Mr Connor, Mr Ernst and Mr Vogler. Mr Murray was not contactable, however I have had regard for his detailed witness statement in my determination of the dispute. Additionally, Ms Shannon Fogarty, Industrial Research Officer for the CEPU gave evidence as to the amounts claimed to be owed to the four members, together with inquiries made with various industry, superannuation and redundancy funds for which payments are required to be made under the two agreements. Mr Jim White, Organiser also gave evidence.

[12] A question of jurisdiction was raised by me to the applicant in the days leading up to the hearing, as to whether Mr Vogler could competently bring his dispute to the Commission given his employment with the respondent ceased on 30 June 2016. There was no evidence prior to today that Mr Vogler had directly, or had the CEPU on his behalf, raise a grievance with the respondent the subject of this dispute.

[13] In questioning from me today, Mr Vogler stated that on 30 June 2016 he said to Mr Wilson that he was upset and frustrated with not being provided with pay slips. He had, at some point during his employment made inquiries as to why his superannuation payments were not up to date, to which Mr Wilson replied to the effect, “Don’t worry about it, you don’t get your super until you’re 65”. Mr Vogler’s evidence is that he told Mr Wilson he was “a joke”, and he resigned his employment.

[14] While Mr Wilson was not present to challenge Mr Vogler as to this conversation, I am satisfied that Mr Vogler had a conversation with Mr Wilson to this effect while he was employed. Accordingly, I am satisfied Mr Vogler attempted, pursuant to the Grievance and Dispute Settling Procedures clause in the earlier enterprise agreement to ‘resolve the dispute at the workplace level’ while he was employed. Accordingly I find there is jurisdiction for Mr Vogler to have his dispute arbitrated by the Commission. There is no such jurisdictional concern for the other three former employees as the CEPU clearly had communication with Mr Wilson and raised relevant concerns while they were employed.

[15] I will now detail my findings as to entitlements owed to each former employee in the same format contained within each former employee’s affidavit.

Mr Christopher Ernst

[16] Mr Ernst was paid an hourly rate of $31.08, when the latter agreement rate was $31.86. I am satisfied Mr Ernst worked a minimum 40 hour week, and therefore he is entitled to an amount of $187.20 on account of not being paid the correct hourly rate.

[17] Mr Ernst was entitled under the agreement to overtime for work performed beyond 36 hours per week. He is entitled to the half component of the time and a half payable on overtime hours for the 37^th – 40^th hours. The calculations demonstrate the amount owed for overtime during the period of employment is $2,122.80.

[18] Mr Ernst’s evidence is that he was not paid fares and travel allowance under the first agreement, but was paid an amount under the second agreement.

[19] I am satisfied Mr Ernst has been underpaid an amount of $5,872.50 with respect to fares and travel allowances under the two agreements.

[20] Mr Ernst was not paid the site allowance under the first agreement and has been underpaid an amount of $2,800.

[21] Having reviewed the BUSS superannuation payments made to Mr Ernst’s fund, and the amounts calculated by Ms Fogarty in her statement, I am satisfied the respondent did not pay to the fund all entitlements owed, and a sum of $720.56 is outstanding.

[22] I am satisfied the total owed to Mr Ernst or to his fund is $11,703.06.

Mr Billy Vogler

[23] Mr Vogler was paid an hourly rate of $60.00. It is submitted that the agreement contained an all-in rate of $62.31, and a shortfall of $2,772 exists for Mr Vogler.

[24] I am not satisfied that all terms of clause 3.3 of the agreement have been met to entitle Mr Vogler to an all-in rate of $62.31. While it may have been the impression Mr Vogler had at the instigation of Mr Wilson, ultimately, the approval process on page 11 of the Agreement was not followed.

[25] It is not this Commission’s responsibility to read down the provision of an enterprise agreement entered into between parties in order for an employee to claim that they are owed monies which can only be enforced by a court, but for which the employee did not do what the employee needed to do to ensure they became entitled to the higher rate of pay. At no time has a form been completed by Mr Vogler, nor was the State Secretary of the CEPU contacted to make sure the employee was aware of what was entailed with an all-in rate.

[26] This Commission is not satisfied an entitlement to the all-in rate exists. If a court of competent jurisdiction finds otherwise, so be it. That being said, if overtime has not been paid to Mr Vogler when it should have been, and Mr Vogler can demonstrate work beyond the hours he was paid, he would be entitled to a sum of monies for that alleged underpayment.

[27] For the same reasons that apply to Mr Ernst’s claim, I am satisfied that Mr Vogler was not paid the following monies to which he was entitled:

• Site allowance: $3,000



• BUSS: $600



• BERT: $565, there being a shortfall



• STQ, that being a fund where monies were not paid in their entirety: $175.

[28] I am satisfied the total owed to Mr Vogler or to his various funds is $4,340

Mr Darren Murray

[29] For the same reasons that apply to Mr Ernst’s and Mr Vogler’s claims, I am satisfied that Mr Murray was not paid the following monies to which he was entitled:

• Site allowance: $700



• Overtime: $258.24



• BUSS: $2069



• BERT: $965



• STQ: $250

[30] I am satisfied the total owed to Mr Murray or to his various funds is $4,242.24.

Stephen Connor

[31] A very large part of Mr Connor’s claim relates to the ‘all in’ rate of pay he says he is entitled to. The amount claimed is nearly $48,000.

[32] For the same reasons why I do not find Mr Vogler is entitled to an all-in rate, Mr Connor did not meet the requirements of the agreement to satisfy the Commission he was entitled to an all-in rate of pay. While Mr Connor was paid only $35 per hour, and his evidence is that he was not paid annual leave, sick leave or for public holidays not worked, it does not equate to him strictly being entitled to an all-in rate for the reasons that he did not complete the relevant paperwork, or have the union provide its agreement or understanding that this arrangement would be entered into.

[33] Mr Connor will have entitlements that exist for the non-payment of annual leave and public holidays and other entitlements which he can claim in a court.

[34] For the same reasons that apply to other former employees, I am satisfied that Mr Connor was not paid the following monies to which he was entitled:

• Site allowance: $6,300



• Overtime: $514.08



• BUSS: $1,598.60



• BERT: $1,920



• STQ: $550

[35] I am satisfied the total owed to Mr Connor or to his various funds is $10,882.68.

[36] The Commission thanks Ms Delaware and Ms Fogarty for the professional way in which the alleged underpayments, the basis of this dispute were presented to the Commission in a format that was easy to understand.

COMMISSIONER

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