Craig v Gold Coast Swim Stars Pty Ltd

[2015] FCCA 3339

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRAIG v GOLD COAST SWIM STARS PTY LTD [2015] FCCA 3339

Catchwords:
INDUSTRIAL LAW – Awards – breach of award – underpayment of award – interpretation of award – relevance of overseas experience.

Legislation:

Fair Work Act 2009 (Cth)

Fitness Industry Award 2010

Applicant: AMANDA CRAIG

Respondent: GOLD COAST SWIM STARS PTY LTD

File Number: BRG 722 of 2015

Judgment of: Judge Heffernan

Hearing date: 4 December 2015

Date of Last Submission: 4 December 2015

Delivered at: Brisbane

Delivered on: 4 December 2015 (ex tempore)

REPRESENTATION

The Applicant: In person

The Respondent: Ms Deeth

ORDERS

1. That the Respondent pay the Applicant the sum of NINE THOUSAND, SEVEN HUNDRED AND SIX DOLLARS AND EIGHTY TWO CENTS ($9,706.82) in unpaid wages and overtime rate by no later than 4.00pm on 28 February 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 722 of 2015

AMANDA CRAIG

Applicant

And

GOLD COAST SWIM STARS PTY LTD

Respondent

REASONS FOR JUDGMENT

(Settled ex tempore reasons)

(As Corrected)

1. The applicant in this matter is Ms Amanda Craig who was employed as a swimming instructor by the respondent between January of 2013 and January of 2015.

2. Ms Craig told the Court, and it was not in dispute, that she was originally a swimming instructor in New Zealand, and it is accepted by the respondent that she had many years of experience there as an instructor. 

3. The applicant has sworn that she had over 700 hours, and possibly closer to 1000 hours, of previous experience as an instructor in New Zealand. 

4. I accept her evidence in this regard. 

5. In addition, she told the Court that she had various New Zealand qualifications as an instructor. 

6. I accept her evidence in that regard as well. 

7. The applicant claims that between 16 June 2013, the approximate period of time when she obtained her Australian qualifications as a swimming instructor, and 11 January 2015, when she ceased employment, she was underpaid in her employment.  She also claims that during that period of time she was underpaid in terms of overtime. 

8. In terms of the main claim with respect to underpayment, the applicant says that she should have been paid as a Level 4 instructor at a rate of between $24.18 per hour, as of June 2013, and $25.55 per hour, in January of 2015, but that she, in fact, was paid a lesser amount at all relevant times, ranging between $19.95 per hour in June 2013 and $21.69 in January 2015. 

9. The figures and hours are set out in attachment J (the schedule) to the materials filed and tendered by the applicant. 

10. I note that there is no dispute as such with the contents of the schedule itself that the applicant has provided to the Court, or her calculations.  Rather, the question is whether the applicant is correct that she should have been paid at the Level 4 rate at all material times.

11. The respondent does not dispute that for at least some period of time the applicant was, in fact, paid at a lesser rate than was appropriate and that, at least on some occasions, was not paid overtime that she was owed.

12. With respect to the payment at the lesser rate, because of being paid at a lower classification, it seems that the respondent was under some misapprehension as to the way in which the award worked in terms of the number of hours of swimming and water safety teaching that needed to be accrued to qualify a person to go to another level. 

13. In fact, the respondent has already paid a significant amount to the applicant in acknowledgement of what it says was the payment at a lesser level than she was entitled to and what I will simply call the overtime issue.

14. The amount paid by the respondent to date was a gross amount of $3,039.04, which became a net amount of $1,999.04 after deducting tax.

15. At the heart of the dispute in this matter is the level at which the applicant should be paid, of course, and at the heart of that question is the issue as to whether or not her New Zealand hours of experience could count towards her remuneration under the Fitness Industry Award. 

16. The applicant says that under B5 Level 4, as stipulated in the Fitness Industry Award 2010, namely B.5.3, an applicant may be a Level 4 if they are also an experienced swimming and water safety teacher, being a holder of any qualification with the competencies detailed in clause B.2.2(b)(xiii) above:

    “who has …

    (ii) delivered 700 hours of swimming and water safety teaching…”

17. In essence, what the applicant says is that that criteria, namely that she is experienced and has delivered at least 700 hours of swimming and water safety teaching, is a standalone qualifier to be remunerated at B5 Level 4. 

18. Her further argument in response to a contention made by the respondent is that the award itself does not stipulate that the training hours should have been accrued in Australia. 

19. The respondent for its part acknowledges that the Fitness Industry Award is the correct award for the applicant at the relevant times; acknowledges that it did not properly understand the standalone quality of having delivered 700 hours of swimming and water safety teaching as a qualifier for Level 4 remuneration, but makes the observation that the applicant’s hours were all accrued in New Zealand and that Swimming Australia does not accept or recognise the accrued New Zealand hours as being relevant for the purposes of this award.

20. As I have said, the applicant’s point is the award makes no mention to where the hours of teaching should be accrued, but rather that it was necessary to accrue a minimum of 700 hours in order to qualify for Level 4. 

21. After a good degree of consideration, I have concluded that I agree with the applicant in this submission. 

22. There is no dispute, as I have said, that the applicant had a significant amount of experience in New Zealand as an instructor and, as I have already said, I accepted her evidence that it would have been at least 700 hours and probably closer to 1000 hours.

23. Accordingly, I find that the applicant should have been paid at the Level 4 rate between 16 June 2013 and 11 January 2015 and that the amount of underpayment was $12,353.86 during that period.

24. However, I note that the respondent has already paid a significant amount towards this already, namely $3,039.04.

25. So I subtract that figure from the calculation of $12,353.86. 

26. I am not satisfied that the applicant has proven her claim to be entitled to the overtime as she has claimed it. 

27. I accept the respondent’s submission in that regard. 

28. Accordingly, I note, however, that the respondent does acknowledge that the applicant was entitled to some over time based on their own figures and I award the applicant an amount of overtime of $392.00. 

29. I should point out at this stage that the earlier payment to the applicant, that I refer to in this judgment, made by the respondent included their calculation for both underpayment based on her level of employment and the overtime component which they had worked out.  However, I subtracted the entire net amount from the figure of $12,353.86 and, accordingly, it is necessary to add back in the respondent’s calculation as to overtime. 

30. Therefore, I make a total judgment in favour of the applicant in the amount of $9,706.82.

1. I will make an order that the respondent pay the judgment sum to the applicant no later than the close of business on 28 February 2016. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 14 December 2015

CORRECTIONS

1. Cover sheet and Orders: Page 2 – delete “TEN THOUSAND, SEVEN HUNDRED AND FORTY SEVEN DOLLARS AND EIGHTY TWO CENTS” and delete “$10,747.82” and insert “NINE THOUSAND, SEVEN HUNDRED AND SIX DOLLARS AND EIGHTY TWO CENTS” and insert “$9,706.82”.

2. Paragraph 24, lines 2-3 – insert “namely, $3,039.04” after the words “towards this already” and delete the rest of the paragraph, namely “and that the applicant, in fact, received from the respondent, once taxation had been deducted, a net amount of $1,999.04”.

3. Paragraph 30, line 2 – delete “$10,746.82” and insert “$9,706.82”.