Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd (No 2)
[2024] FedCFamC2G 568
•27 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd (No 2) [2024] FedCFamC2G 568
File number(s): SYG 2115 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 27 June 2024 Catchwords: INDUSTRIAL LAW – whether second applicant proved he has not been paid entitlements under award – second applicant proved he had not been paid certain entitlements – declaration and orders made. Legislation: Fair Work Act 2009 (Cth) ss 45, 545(1), 547
Ports, Harbours and Enclosed Water Vessels Award 2010 cls 10.3(b), 14.17, 14.22, 14.23, 18.2, 19, 20.1, 20.3, 20.4, 21
Cases cited: Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd [2022] FedCFamC2G 699
Manchee v BTIG Australia Limited [2022] FedCFamC2G 813
Division: Fair Work Number of paragraphs: 19 Date of hearing: 6 December 2022 Place: Sydney Counsel for the Applicants: Mr T Slevin and Mr A Guy Solicitor for the Applicants: Slater & Gordon Lawyers Counsel for the Respondent: Mr Y Shariff SC Solicitor for the Respondent: Seyfarth Shaw ORDERS
SYG 2115 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Applicant
BEAU THEODORE CHIPPINDALE
Second Applicant
AND: NOORTON PTY LTD ACN 070 125 478
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
27 JUNE 2024
THE COURT DECLARES THAT:
1.By failing to pay the second applicant from around 25 May 2015 to 10 October 2018 shift allowances as provided for by cl 21.1 of the Ports, Harbours and Enclosed Water Vessels Award 2010, the respondent contravened a term of a modern award and, for that reason, contravened s 45 of the Fair Work Act 2009 (Cth) (FW Act).
THE COURT ORDERS THAT:
2.Pursuant to s 545(1) and s 547 of the FW Act the respondent pay the second applicant the sum of $12,301.91.
3.The matter be listed for a directions hearing at 9:30 am on 11 July 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 26 August 2022 I published reasons for judgment (earlier reasons) on the basis of which I ordered that the matter be listed for a directions hearing for the purpose of setting the matter down to hear submissions on:[1]
(a)what if any relief should be granted on the basis of the findings that have been made in relation to the industrial instruments that applied to the second applicant’s employment with the respondent; and
(b) whether, on the findings that have been made, and the evidence that has been adduced, the respondent failed to pay to the second applicant during his employment with the respondent any amounts to which the second applicant became entitled under the Ports, Harbours and Enclosed Water Vessels Award 2010.
[1] Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd [2022] FedCFamC2G 699
On 21 September 2022 I made orders in chambers for the filing of submissions, and I set the matter down for further hearing on 6 December 2022. On that day I heard submissions on what, if any, relief should be granted on the basis of the findings I made in the earlier reasons, and whether the respondent (Noorton) has failed to pay the second applicant, Mr Chippindale, any amounts to which he became entitled under the Ports, Harbours and Enclosed Water Vessels Award 2010 (PHE Award).
MR CHIPPINDALE’S UNDERPAYMENT CLAIMS
In the earlier reasons I noted the following:
(a)The statement of claim alleges Noorton had failed to pay to Mr Chippindale amounts which are based on calculations as set out in a spreadsheet annexed to, and explained in, an affidavit made by Mr Garrett, a divisional deputy branch secretary of the first applicant. The spreadsheet is identified as “annexure PG1”.[2]
(b)Annexure PG1 represents that Mr Chippindale was underpaid amounts totalling $38,056.48.[3]
(c)In evidence he gave under cross-examination, Mr Garrett accepted he had excluded from his analysis amounts Mr Chippindale had been paid in connection with whale watching services. [4]
(d)Mr Chippindale did not disagree with what Mr Ford (Noorton’s chief executive officer) said in his affidavit about allowance for meal breaks,[5] namely, that all employees would be paid for a meal break of 20 minutes when working shifts of greater than five hours, and that Noorton paid Mr Chippindale throughout each meal break he had taken.[6]
(e)Under cross-examination, Mr Garrett accepted that in his calculations he assumed that Mr Chippindale had become entitled to a meal allowance whenever Mr Chippindale had worked in excess of five hours where he did not receive a break.[7]
(f)I found that the applicants’ calculations have been made on the basis of assumptions that do not reflect the terms of cl 14.17 of the PHE Award and without reference to the evidence, although that did not necessarily mean that the evidence may not support findings that Mr Chippindale was not paid meal allowances.[8] I noted I would invite submissions on whether, on the evidence that has been admitted, and on the findings I had made, Noorton did fail to pay to Mr Chippindale amounts on account of meal allowances.[9]
(g)In evidence given under cross-examination, Mr Garrett accepted that his calculations of the travel allowance under cl 14.22 of the PHE Award were based on the assumption that Mr Chippindale travelled more than half an hour between 11:00 pm and 6:00 am, thus falling within cl 14.22(a)(ii); that in calculating the allowances under cl 14.23 Mr Garrett applied a flat hourly rate for anytime Mr Chippindale travelled from port to port without taking into account whether that occurred outside ordinary hours; that Mr Garrett assumed Mr Chippindale did not own a motor vehicle; and, although Mr Garrett was aware that Noorton allowed its employees to claim $6 when they started and finished at different ports, he did not include in his calculations any payments of $6.[10]
(h)I accepted Noorton’s submission that the evidence does not support Mr Chippindale’s claim that he had become entitled to any travel allowance under cl 14.22 of the PHE Award. I noted I would invite submissions on whether, on the evidence that has been admitted, and on the findings I have made, Noorton did fail to pay to Mr Chippindale travel allowances.[11]
PARTIES’ SUBMISSIONS
[2] Earlier reasons, [148]
[3] Earlier reasons, [148]
[4] Earlier reasons, [148]
[5] Earlier reasons, [154]
[6] Earlier reasons, [153(b), (d)]
[7] Earlier reasons, [155]
[8] Earlier reasons, [156]
[9] Earlier reasons, [156]
[10] Earlier reasons, [159]
[11] Earlier reasons, [161]
Applicants’ written submissions
The applicants have attached to their written submissions a “revised spreadsheet of calculations” (Revised Spreadsheet), which discloses alleged underpayments totalling $15,962.42. This represents what is said to be the total of the annual differences between the amounts the applicants allege Noorton was obliged to pay Mr Chippindale under the PHE Award for each of the financial years ended 2015, 2016, 2017, 2018, and 2019, and the amounts Noorton in fact paid Mr Chippindale.
The Revised Spreadsheet comprises of sheets which contains information under headings that include the following:
(a)Day
(b)Date
(c)Start Time
(d)Finish Time
(e)Hours worked
(f)Master/GPH
(g)Casual Rate
(h)Hourly rate
(i)Saturday rate
(j)Sunday rate
(k)Rate Total
(l)Afternoon Shift Allowance
(m)Public Holiday Loading value Amount
(n)Travel Allowance (AM + PM)
(o)Meal Allowance
(p)Travel allowance value (Different start / finish points)
(q)Total
(r)Paid by Noorton
(s)Award entitlement
(t)Money owed
The Revised Spreadsheet calculates for each week during the period commencing on 25 May 2015 and ending on 10 October 2018 all of the amounts to which the applicants alleged Mr Chippindale became entitled to be paid, and the total amount, for that week, Noorton paid to Mr Chippindale. The $15,962.42 is the sum of the weekly differences between the amounts to which Mr Chippindale claimed he was entitled to be paid under the PHE Award, and the amounts Noorton in fact paid Mr Chippindale.
In their written submissions the applicants submit that no issue has been taken in the proceeding as to the authenticity and correctness of the documents on the basis of which Mr Garrett prepared annexure PG1; and, for that reason, there is sufficient material already in evidence to establish whether Mr Chippindale was underpaid. The applicants submit that they “have prepared a revised spreadsheet of calculations evidencing the underpayment of” Mr Chippindale, and the applicants submit that their written submissions identify the “basis for each component part of these calculations”.[12] The applicants’ written submission continue as follows:
[12] Applicants’ Outline of Submissions on Relief, [16], [17]
(a)Under the heading “The Second Applicant’s Minimum Hourly Entitlements”, there is set out cl 10.3(b) of the PHE Award, and the rates payable from 25 May 2015 to 10 October 2018. The applicants do not allege that Mr Chippindale was not paid these entitlements.[13]
[13] Applicants’ Outline of Submissions on Relief, [18], [19]
(b)Under the heading “The Second Applicant’s Overtime Entitlements”, there is set out cl 18.2 of the PHE Award and the overtime rates provided for by cl 20.1. It is then stated that the “overtime rates worked by [Mr Chippindale] in accordance with clause 20.1 of the PHE Award are incorporated into Annexure ‘A.’”.[14]
[14] Applicants’ Outline of Submissions on Relief, [22]
(c)Under the heading “The Second Applicant’s Saturday, Sunday and Public Holiday Entitlements”, there is set out cl 20.1(b) of the PHE Award and the rates provided for by cl 20.3 and cl 20.4. It is then stated that “[t]he Saturday, Sunday and public holiday rates that [Mr Chippindale] was entitled to for the Employment Period pursuant to clauses 20.1(b), 20.3 and 20.4 are incorporated into Annexure ‘A.’”.[15]
(d)Under the heading “The Second Applicant’s Shift Allowance Entitlements”, there is set out cl 21 of the PHE Award, and the rates provided for by cl 21.2. It is then stated that “[t]he shift allowances to which [Mr Chippindale] was entitled to for the Employment Period … pursuant to clause 21 of the PHE Award are incorporated into Annexure ‘A.’”.[16]
(e)Under the heading “The Second Applicant’s Meal Allowance Entitlements”, there is set out cl 14.17 of the PHE Award, and the different rates of the PHE Award during Mr Chippindale’s employment. The applicants submit as follows:
(i)I should find that Mr Chippindale is entitled to a meal allowance pursuant to cl 14.17 for each instance he worked overtime in excess of one and a half hours after his usual ceasing time. This approach is “appropriate and correct in circumstances where throughout [the] proceedings this position has been advanced without objection from the Respondent”;[17] and there is no submission or evidence from Noorton that it had provided Mr Chippindale with notice the day before that he was to work an overtime shift.[18]
(ii)Noorton did not provide Mr Chippindale with a “suitable meal”, as required by cl 14.17 of the PHE Award, the uncontested evidence from Mr Chippindale being that “food on board the vessel consisted of a small packet of chips and a can of soft drink”.[19] The applicants submit that this does not constitute a “suitable meal” for the purposes of cl 19 of the PHE Award.[20]
(iii)It follows that Mr Chippindale was entitled to a meal allowance pursuant to cl 14.17 of the PHE Award for every instance he worked in excess of one and a half hours of his usual ceasing time;[21] and that position has been incorporated in the Revised Spreadsheet.[22]
(iv)Mr Ford accepted in cross-examination that Mr Chippindale was not paid for meal breaks on shifts of five or more hours in duration on three occasions in each of 2015, 2016, and 2017. These amounts have not been included in the applicants’ calculations, but it is incumbent on Noorton to identify the relevant shifts so proper calculations can be performed.[23]
(f)Under the heading “The Second Applicant’s Transport Allowance Entitlements”, there is set out cl 14.22 of the PHE Award.[24] The applicants submit that it is not in contest Mr Chippindale claimed a $6 allowance for travel when applicable, but he was not paid in accordance with cl 14.22 when he commenced or finished work after 11:00 pm and before 6:00 am; and it is not in contest that Noorton did not provide Mr Chippindale with a conveyance. What is supported by the evidence is that, from around 25 May 2015 to 10 October 2018 (Employment Period), Mr Chippindale lived in Surry Hills and from time to time he would commence or finish work after 11:00 pm or before 6:00 am. In those circumstances, it is appropriate to find that Mr Chippindale was underpaid on those occasions by half an hour pursuant to cl 14.22 of the PHE Award; and the Revised Spreadsheet incorporates those amounts.[25]
[15] Applicants’ Outline of Submissions on Relief, [25]
[16] Applicants’ Outline of Submissions on Relief, [28]
[17] Applicants’ Outline of Submissions on Relief, [33]
[18] Applicants’ Outline of Submissions on Relief, [34]
[19] Applicants’ Outline of Submissions on Relief, [35]
[20] Applicants’ Outline of Submissions on Relief, [38]
[21] Applicants’ Outline of Submissions on Relief, [39]
[22] Applicants’ Outline of Submissions on Relief, [39]
[23] Applicants’ Outline of Submissions on Relief, [42]
[24] Applicants’ Outline of Submissions on Relief, [44]
[25] Applicants’ Outline of Submissions on Relief, [43]-[49]
Noorton’s written submissions
In its written submissions Noorton submits as follows:
(a)The calculations in the Revised Spreadsheet, as with the calculations in annexure PG1, have been developed on the basis of a number of assumptions in relation to which there is no underlying evidence.[26]
(b)Other than what he said in paragraph 19 of his affidavit made on 26 April 2021, Mr Garrett has not given any evidence how he calculated the columns headed “Rate Total”, “Afternoon Shift Allowance”, “Travel Allowance (AM + PM)”, “Meal Allowance”, or “Travel Allowance (different start/ finish point)”. Mr Garrett has gone no further than specifying a dollar figure without more.[27]
(c)The unchallenged evidence from Noorton’s payroll records is that Mr Chippindale was paid a total of $205,233.93, whereas the Revised Spreadsheet alleges Mr Chippindale was paid a total of $204,435.69. Noorton’s figures should be accepted because the applicants do not explain how they have arrived at $204,435.69.[28]
(d)The Revised Spreadsheet identifies four classes of underpayments, these being $9,465.91 for afternoon shift allowances (shift allowance claim); $333.76 for meal allowances pursuant to cl 14.17 of the PHE Award (meal allowance claim); $3,130.58 for travel allowances pursuant to cl 14.22 of the PHE Award (14.22 travel allowance claim); and $8,336.57 for travel allowance under cl 14.23 of the PHE Award (14.23 travel allowance claim).[29]
(e)As for the shift allowance claim, there is no evidence of how the amounts have been calculated, why Mr Chippindale is said to be entitled to the amounts, or the basis of claiming such an allowance on each of the days it is claimed.[30]
(f)As for the meal allowance claim, there is no pleaded case in support of any meal allowance, and there is no evidence to support such claim.[31] The applicants also have not pleaded any breach of cl 19 of the PHE Award, and have led no evidence in support of any such entitlement.[32]
(g)As for the 14.22 and 14.23 travel allowance claims, the applicants have not identified any evidence that engaged cl 14.22 or cl 14.23 of the PHE Award.[33]
[26] Respondent’s Submissions on Relief, [11], [12], [13]
[27] Respondent’s Submissions on Relief, [22]
[28] Respondent’s Submissions on Relief, [16]
[29] Respondent’s Submissions on Relief, [18]
[30] Respondent’s Submissions on Relief, [24]
[31] Respondent’s Submissions on Relief, [30]
[32] Respondent’s Submissions on Relief, [44]
[33] Respondent’s Submissions on Relief, [48], [55], [63]
Applicants’ written submissions in reply
In their written submissions in reply, the applicants conceded that the quantum should be adjusted to reflect the amounts recorded on Noorton’s payroll records; and the applicants do not press the meal allowance claim. The applicants submit, however, there is evidence in support of the other claims, these being payslips, screenshots of timesheets, timesheets inspected by Mr Garrett, and Mr Chippindale’s evidence about the way he worked, the travel he undertook, and the meals he was provided.
Oral submissions
In his oral submissions, counsel for the applicants submitted that the nature of the disagreement between the parties did not appear to be there was no underpayment; the disagreement appears to be whether the applicants have established the evidentiary basis for the calculations the applicants made. Counsel for the applicants, therefore, said he proposed to take me to the evidence to show the facts that underpin the Revised Spreadsheet.
Counsel for the applicants began with paragraph 18 of Noorton’s written submissions in which, as I have already noted, Noorton identified four classes of alleged underpayments, these being $9,465.91 for the shift allowance claim; $333.76 for the meal allowance claim (no longer pressed); $3,130.58 for the 14.22 travel allowance claim, and $8,336.57 for the 14.23 travel allowance claim. As for the 14.22 travel allowance claim, counsel for the applicants said “we don’t press the table”,[34] by which I understand counsel intended to refer to the Revised Spreadsheet, but pressed the amounts of $3,130.58 for the 14.22 travel allowance claim, and $8,336.57 for the 14.23 travel allowance claim stated in paragraph 18 of Noorton’s written submissions, “save that we make a deduction for the $6 travel allowance” in relation to the 14.22 travel allowance claim.[35]
[34] T3.45
[35] T4.5
In support of the $9,465.91 for the shift allowance claim, counsel for the applicants:
(a)referred to cl 21.2 of the PHE Award, which provides for 115% of (that is, a 15% loading on) the ordinary time rate for “[a]fternoon shift”, which expression is defined in cl 21.1(a) as “any shift finishing after 6.00 pm and at or before midnight”;
(b)referred to page 108 of the Court Book, being an extract from the “secure.easyemployer.com” record which records Mr Chippindale began work at 4:15 pm on 27 May 2015, and ended at 10:45 pm, thus working for 6.5 hours;[36]
(c)removed the 25% loading alleged in the pleading which was premised on there being a casual loading, and replaced it by the 15%, which results in a shift loading of $3.11 per hour; and
(d)referred to the pay period ended 7 June 2015,[37] submitting “that no payment was made in that pay period for an afternoon shift”.[38]
[36] CB108
[37] CB287
[38] T6.40
The applicants have calculated the shift allowance Noorton ought to have paid but did not pay to Mr Chippindale to be $9,465.91.
Counsel for the applicants also referred to business records in relation to the 14.22 and the 14.23 travel allowance claims, but for reasons that will shortly appear, it is not necessary to set out the business records to which counsel referred, or the submissions counsel made in relation to them.
In his submissions counsel for Noorton appeared to distinguish between the 14.22 and the 14.23 travel allowance claims, on the one hand, and the shift allowance claims, on the other. Counsel submitted that the applicants have not identified evidence that engaged any obligation to pay shift allowances, or to pay the 14.22 and 14.23 travel allowance claims. Counsel submitted the records are insufficient to support the assumptions on which Mr Garrett relied in calculating the 14.22 and the 14.23 travel allowance claims. Counsel submitted, however, that “one could accept to a certain extent that in respect of the afternoon shift allowance . . . if he’s finishing after, under the clause, 6 pm, one could infer that that was a shift that finished after 6 pm, so therefore he was entitled to a 15 per cent allowance for those”.[39]
[39] T24.10
Counsel for Noorton referred to the judgment of Judge Cameron in Manchee v BTIG Australia Limited.[40] Counsel suggested that the approach his Honour adopted in Manchee could apply to the circumstances of the case before me. In my opinion, however, Manchee is not relevant to the applicants’ claims. The applicants claim payment of liquidated amounts to which Mr Chippindale claims he became entitled under the PHE Award. The applicants’ claims are in the nature of a claim for debt, not a claim for compensation.
[40] Manchee v BTIG Australia Limited [2022] FedCFamC2G 813
DETERMINATION
I am satisfied that the records that are in evidence support the finding that, during the Employment Period, Noorton did not pay to Mr Chippindale the shift allowances provided for by cl 21.2 of the PHE Award; and that the entitlements totalled at least $9,465.91, being the amount Noorton calculated. To that extent Noorton contravened cl 21.2 of the PHE Award and, for that reason, contravened s 45 of the FW Act.
In the earlier reasons I concluded that Mr Garrett’s calculations were based on assumptions that do not reflect the terms of cl 14.22 of the PHE Award. Although I did not expressly so state in the earlier reasons, I ought to have stated, and I now in any event state, that Mr Garrett’s calculations have also been based on assumptions that do not reflect the terms of cl 14.23 of the PHE Award. I am not satisfied however, that the evidence is capable of supporting the assumptions on the basis of which Mr Garrett made his calculations of the amounts of the 14.22 and 14.23 travel allowance claims. As counsel for Noorton submitted in oral address, Mr Chippindale did not give evidence on matters relevant to determining whether the terms of cl 14.22 and cl 14.23 of the PHE Award were engaged and, if so, the extent to which the terms of cl 14.22 and cl 14.23 were engaged. Instead, the applicants relied on Mr Garrett’s calculations in which he assumed, without any evidentiary support, that:
(a)whenever Mr Chippindale commenced work before 6:00 am Noorton did not provide Mr Chippendale with a means for transport;
(b)the actual time Mr Chippindale spent in getting to work in the morning was one hour;
(c)there was no arrangement between Mr Chippindale and Noorton by which Mr Chippindale would drive his own vehicle to work; and
(d)in relation to the travel allowance with different start/finish times, Mr Garrett claimed the full hour without looking at the time Mr Chippendale actually spent travelling from one port to another, or whether that was time outside of ordinary hours.
DISPOSITION
I propose to:
(a)make a declaration that by failing to pay to Mr Chippindale during the Employment Period shift allowances as provided for by cl 21.1 of the PHE Award, Noorton contravened a term of the PHE Award and, therefore, s 45 of the FW Act;
(b)order pursuant to s 545(1) of the FW Act that Noorton pay to Mr Chippindale $9,465.91;
(c)order pursuant to s 547 that interest in the amount of $2,836 be included in the order I propose to make pursuant to s 545(1) of the FW Act;[41] and
[41] I have calculated interest on $9,465.91 as from 10 October 2018 (being the last day of the Employment Period) by applying the method provided for by the Federal Court Practice Note GPN-INT, and by applying the rate provided in that Practice Note, namely, 4% above the cash rate for each six month period.
(d)list the matter for a directions hearing to make directions on the question of penalty.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 27 June 2024
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