Construction, Forestry, Mining and Energy Union v Skillman Pacific Pty Ltd

[2014] FWC 8325

[2014] FWC 8325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
Skillman Pacific Pty Ltd
(C2014/5788)

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 21 NOVEMBER 2014

Alleged dispute concerning Superannuation, Inco link and Sick pay.

[1] This decision relates to an application by the Construction, Forestry, Mining and Energy Union (the Applicant) pursuant to s.739 of the Fair Work Act 2009 (the Act) in relation to a dispute concerning underpayment by Skillman Pacific Pty Ltd (the Respondent).

[2] The application was filed pursuant to a disputes resolution procedure contained in an enterprise agreement by which the Applicant and the Respondent are covered, being the Skillman Pacific Pty Ltd T/As Skillman Scaffolding and the CFMEU Contract Scaffolding Enterprise Agreement 2011-2015 (the Agreement).

[3] Mr Phillip Glucz (Glucz) is a member of the Applicant and was an employee of the Respondent since about 2000 as a crane driver. Glucz notified the Applicant of a dispute with the Respondent in relation to an alleged underpayment of wages and entitlements provided for in the Agreement. Accordingly the Applicant filed an application with the Fair Work Commission (the Commission) to deal with the dispute.

Background, factual context and findings

[4] As stated above, Glucz commenced work with the Respondent in about 2000 as a crane driver. On 22 June 2012 Glucz suffered an injury where he sustained a shoulder injury which required surgery approximately 12 months after the initial injury. As he was working as a crane driver Glucz continued to work for the Respondent on ‘light duties’ on a part time basis until the particular job the Respondent was working on came to an end, on 27 August 2012.

[5] Due to his injury, and the Respondent’s inability to provide further ‘light duties’, Glucz wasn’t able to work and subsequently made a claim for compensation under the relevant workplace injury compensation legislation.

[6] This claim was accepted and Glucz was found to have suffered a workplace injury and entitled to receive weekly payments.

[7] The Respondent’s insurer for the purposes of workers compensation is Gallagher Bassett Services Pty Ltd (Gallagher Bassett). The claim was backdated to the date of the injury, 22 June 2012, and Glucz received compensation from Gallagher Basset but paid as wages through the Respondent until Glucz became a direct payee of Gallager Basset in October 2012.

[8] As per the relevant legislation, compensation paid to employees who have sustained an injury is a percentage of the worker’s pre-injury earnings. This usually means there is a deficiency between the workers usual wage and the amount they receive in compensation because of the injury. To mitigate this deficiency, often enterprise agreements and awards will have clauses relating to accident make-up pay. The Agreement in this case has such a clause found at clause 33 of the Agreement. Clause 33 provides:

“Accident pay means a weekly payment of an amount being the difference between the weekly amount of compensation paid to the employee pursuant to the relevant workers compensation legislation and the Employee’s appropriate 36 hour rate prescribed by appendix B of this Agreement….

“The Company shall pay accident pay, during the incapacity of their employee/s arising from any one injury, for a total of fifty-two (52) weeks – irrespective of whether such incapacity is in one continuous period or not…

[9] Glucz alleges he has not received the full amount of top-up pay as provided for by clause 33 of the Agreement. He concedes that he did receive approximately three months of top-up pay from the Respondent but he has not received 52 weeks as provided for by the Agreement.

[10] The Respondent’s director Howard Ashley (Ashley) attended at mediation at the Victorian Building Industry Disputes Panel (VBIDP) on 19 June 2013 as part of the disputes procedure contained in the Agreement, although he failed to attend the first mediation.

[11] At the mediation, Ashley acknowledges that the Respondent has not fulfilled its obligations under clause 33 of the Agreement. He stated that the reason was because the Respondent was in financial trouble and that they simply did not have the money to pay Glucz’s debt.

[12] Two further allegations are made against the Respondent by the Applicant on behalf of Glucz. They are that payments into Glucz’s CBus superannuation account and his Incolink Fund are not up to date. The Agreement provides, at clause 34, that Respondent is obliged to comply ‘with the industry schemes Incolink, CBus and Coinvest.’

[13] A conference was held pursuant to the Applicant’s application at the Commission on 29 August 2014.

[14] The Respondent was notified of the conference by email and by post to its registered address. Despite the notification no representative of the Respondent attended the conference.

[15] In lieu of the fact that the Respondent is obviously unwilling to participate in any dispute resolution and based on information that the Respondent is likely to go into liquidation, the Applicant is seeking declarations that the relevant clauses of the Agreement apply to Glucz and that there is a debt owed by the Respondent to Glucz based on non-compliance with the Agreement.

[16] The Commission finds that clauses 33 and 34 of the Agreement apply to Glucz and that any failure to comply with those clauses creates a debt owed to Glucz by the Respondent.

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