Dean v Weir Minerals Australia Ltd
[2018] FCCA 108
•19 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEAN v WEIR MINERALS AUSTRALIA LTD | [2018] FCCA 108 |
| Catchwords: EMPLOYMENT LAW – Remuneration – recovery – limitation on recovery. |
| Legislation: Conciliation and Arbitration Act 1904 (Cth), s.119(3) |
| Matus v Australia Wide Computer Resources Pty Ltd & Anor (No.2) [2015] FCCA 2055 |
| Applicant: | ANTONY DEAN |
| Respondent: | WEIR MINERALS AUSTRALIA LTD |
| File Number: | CAG 18 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | By written submission |
| Date of Last Submission: | 20 November 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 19 January 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ai Workplace Lawyers |
ORDERS
Pursuant to rule 13.10(a) of the Federal Circuit Court Rules2001:
(a)the applicant’s claims for underpayments in respect of paid rest breaks beyond 24 March, 2009 be dismissed;
(b)the applicant’s claims for underpayments in respect of ordinary time wages beyond 24 May, 2010 be dismissed.
The application be adjourned for further directions on 5 February 2018 at 9:30am in the Federal Circuit Court of Australia sitting in Brisbane.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
CAG 18 of 2015
| ANTONY DEAN |
Applicant
And
| WEIR MINERALS AUSTRALIA LTD |
Respondent
REASONS FOR JUDGMENT
Section 545(5) of the Fair Work Act2009 (Cth) provides:
Time limit for orders in relation and payments
(5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than six years before the proceedings concerned commenced.
This application for the summary dismissal of parts of the applicant’s claim against the respondent raises the following issues:
a)whether the term underpayment where it appears in s.545(5) of the Fair Work Act is apt to cover the circumstance where no payment at all is made in respect of an entitlement accruing to an employee under an industrial instrument; and
b)whether the phrase proceedings concerned where it appears in that same subsection refers to the court proceedings in which the relevant question is being considered or whether it has a broader meaning to encompass the dispute generally between the employer and the employee and the steps taken in that wider dispute.
For the reasons that follow, in my view:
a)the term underpayment where it appears in s.545(5) of the Fair Work Act is not apt to cover the circumstance where no payment at all is made in respect of an entitlement accruing to an employee under an industrial instrument; and
b)the phrase proceedings concerned where it appears in that same subsection refers to the court proceedings in which the relevant question is being considered, such that a court must not make an order under s.545(1) or 545(2) of the Fair Work Act in relation to an underpayment that relates to a period that is more than six years before the court application in which those orders are sought commenced.
Mr Dean was employed on a full-time basis by the respondent between November, 2005 and November, 2012. By his primary application, he seeks relief pursuant to the Fair Work Act 2009 (Cth) in respect of the non-payment and underpayment of entitlements he claims are due to him by reason of his employment. His claim was commenced in the small claims jurisdiction of this Court provided for in the Fair Work Act.
Each entitlement relevant to Mr Dean’s claims is alleged to arise pursuant to one or other of the Metals, Engineering and Associated Industries Award 1998, the Metal Manufacturing and Associated Industries and Occupations Award 2010, the Weir Minerals Australia Limited – Enterprise Agreement 2009 and the Weir Minerals Australia Limited – Enterprise Agreement 2011. The total of his claims is about $30,000 inclusive of interest. Mr Dean’s claims, which span the period 11 February, 2008 to 4 July, 2012 have three aspects.
The first relates to unpaid rest breaks. He claims that whenever he worked overtime on a particular day in excess of 1½ hours, he was entitled to payment of a meal allowance. He alleges that he was denied that entitlement. He was never paid a meal allowance. Consequently, in respect of those non-payments he claims what he alleges he should have been paid for those meal allowances over the period 11 February, 2008 to 4 July, 2012.
The second aspect of his claims relates to paid rest breaks. Mr Dean’s complaint is that although he seems to have been paid for rest breaks to which he was entitled pursuant to the various industrial instruments that applied to his employment, he was not paid for those breaks at the correct rate of pay. They were paid at ordinary time rates, instead of overtime rates. His claim in this regard is a claim for the underpaid amounts.
The final component of his claims relates to unpaid wages. He alleges that, by reason of the respondent rounding down the hours that he worked, he was not paid for all of the time that he worked. He claims that he is entitled to payment for ordinary hours worked but not paid, either as a result of the rounding errors in his pay and, for a period in 2012, because sick leave was not accounted properly.
Mr Dean’s claims are factually complex because they depend upon a minute dissection of the dates and times that he performed work for the respondent over many years. Despite the matter being listed for hearing before me in March, 2017 the application was not ready for hearing when it came before me. The trial did not proceed and I made some directions focussed upon having the issues in dispute more clearly identified. As a result of the goodwill and cooperation between the parties, the factual issues have narrowed considerably. There have been significant efforts made by the parties to identify common ground and to more clearly expose the factual matters that remain in dispute.
The orders sought by Mr Dean in his principal application are authorised by ss.545(1) and 545(2) of the Fair Work Act. However, s.545(5) provides for a restriction upon the period for which an order in relation to an underpayment may be made. I have set out the terms of the subsection at the commencement of these reasons. A couple of observations might be made about that subsection.
The first is that s.545(5) relates only to an underpayment. That term is not defined in the Fair Work Act. However, in obiter it has been suggested that it does not extend to non-payment of entitlements. In Matus v Australia Wide Computer Resources Pty Ltd & Anor (No.2) [2015] FCCA 2055, Judge Nicholls dealt with a case where, inter alia, the claim was for unpaid annual leave entitlements that became due upon the termination of the employee’s employment. Some of the annual leave entitlements had accrued more than six years before the application before the Court was commenced. After recording the respondent’s argument on this point and setting out the terms of s.545(5), his Honour said:
192. The difficulty for the respondents is that this sub-section operates in relation to “underpayments”. That is not the claim made by the applicant, nor does it relate to the breaches as set out above.
193. The case does not involve any “underpayment”. Rather, the contraventions found are that the respondent failed to pay the applicant accrued annual leave on termination of his employment. While on the evidence some payment of part of the applicant’s accrued annual leave was paid on termination, the applicant’s application to the Court concerns that portion of accrued annual leave not paid.
194. As set out above, s.90(2) of the FW Act required the respondent to pay the applicant an amount of money, on cessation of his employment, for untaken accrued annual leave payable to the applicant.
195. I do not understand that portion of annual leave not paid on cessation of employment, which should have been paid at that time, to be an “underpayment” in the sense set out in s.545(5) of the FW Act. However, even if it were to be so characterised, it is an “underpayment” made as at cessation of employment (16 July 2012) which is within the six year period.
On one view, there may be no difference between an underpayment and non-payment. Non-payment of an entitlement might be said to be an underpayment in the sense that none of what was otherwise to be paid, was paid. But there are circumstances where payment of an entitlement might be said to be an underpayment (because it has been paid at the wrong rate or a rate has been applied to an insufficient period of time) rather than no payment at all. That, with respect, seems to be the logic underlying paragraph 193 of Judge Nicholl’s judgment set out above.
Both an underpayment and non-payment might each constitute a contravention of a civil penalty provision of the Fair Work Act and attract the operation of s.545(1) and 545(2). Arguably, if it was the intention of the Legislature to bar claims to any unpaid entitlements that had accrued more than six years before the commencement of the proceedings, the legislation could easily have provided for that (see for example s.119(3) of the Conciliation and Arbitration Act 1904 (Cth) and s.369(3) of the Industrial Relations Act 1996 (NSW)).
Section 719 of the Workplace Relations Act 1996 (Cth) is an example of the word underpayment probably including non-payment or no payment at all. That section was repealed by the Fair Work Act. Relevantly, it provided:
719 Imposition and recovery of penalties
(1) An eligible court may impose a penalty in accordance with this Division on a person if:
(a) the person is bound by an applicable provision; and
(b) the person breaches the provision.
…
(6) Where, in a proceeding against an employer under this section, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under an applicable provision (except a term of an ITEA), the court may order the employer to pay to the employee the amount of the underpayment.
…
(9) An order must not be made under subsection (6) or (7) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding.
It is apparent from the terms of ss.719(6) that the word underpayment is used to describe a situation where an employee has not been paid an amount that the employer was required to pay under an applicable provision. That is to say, for the purposes of s.719(9) of the Workplace relations Act, underpayment also seemed to extend to non-payment of entitlements that had accrued to an employee.
While the word underpayment does not appear in the Macquarie Dictionary (Macquarie Dictionary Publishers, 7th Edition, 2017), the word underpay does and is defined as “to pay insufficiently.” Similarly, in the Shorter Oxford English Dictionary (Oxford University Press, 6th Edition, 2007), one is referred to the definition of underpay which is defined to mean “pay less than what is due or deserved to (a person etc) or for (a service etc).” In both cases, the definition supposes that there has been some payment, but too little has been paid.
In my view, underpayment where it appears in s.545(5) of the Fair Work Act does not include non-payment of an entitlement. To put it another way, it does not include the circumstance where no payment has been made at all in respect of a particular entitlement. An underpayment occurs when some payment has been made in respect of a particular entitlement, but too little has been paid. That view is, I think, consistent with Matus (above).
The second observation to be made about s.545(5) is that it is not at all clear that the reference to proceedings concerned in s.545(5) of the Act is a reference to the court proceedings in which a court is asked to make the relevant order. The respondent’s argument assumes that the phrase proceedings concerned should be construed so as to refer to the application then before the Court so that the commencement date of the court application is the relevant date for working out the six year period referred to in s.545(5).
Mr Dean’s argument takes a broader view of that phrase. He argues that proceedings were commenced on 11 February, 2014 when he sent a claim letter to the respondent for his unpaid meal allowance and the underpaid rest breaks. His claims were not resolved to his satisfaction and he took further action and made an application to the Fair Work Commission. His application was the subject of mediation that was unsuccessful and the present court application was then commenced. Mr Dean argues that the proceedings referred to in s.545(5) of the Act are any steps (i.e., proceedings) taken in respect of the subject matter of what has become an application to a court.
The word proceedings is not defined in the Fair Work Act or, for that matter, in the Acts Interpretation Act 1901(Cth). However, it is used throughout the Fair Work Act in various ways to describe not just applications in a court. For example, at the time the present application was commenced, s.341(1) of the Act provided that a person has a workplace right if the person is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument.
Subsection 341(2) provided (and continues to provide):
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Thus, s.341(2) provides that the word proceedings can mean any one of 11 alternatives (with the last alternative itself being apt to include many more examples), only one of which involves an application to a court. Significantly, the prescription includes a conference conducted or hearing held by the Fair Work Commission.
The word proceedings in s.545(5) is qualified by the word concerned. Together, the phrase proceedings concerned commenced operate to define the date from which the relevant six year period should be reckoned. Does the qualification operate to confine the word proceedings to the court application at hand so that the relevant reckoning date is the date the court application commenced, or does it simply refer to the wider dispute between the employer and the employee and the relevant reckoning date is some date earlier that the commencement of the court application?
In my view, the phrase proceedings concerned commenced relates to the commencement date of the court application in which a court is asked to make relevant orders. I reach that conclusion because:
a)a court application plainly meets the description of proceedings;
b)the proceedings are necessarily proceedings in which the applicant must persuade the Court that the respondent contravened a civil remedy provision of the Act (s.545(1)). The Court’s power to make the orders sought by Mr Dean only arises in such proceedings;
c)a person may only apply for an order under s.545(1) in relation to a contravention of a civil remedy provision, a safety net contractual entitlement or an entitlement arising under subsection 542(1) of the Act if the application is made within six years after the day on which the contravention occurred: s.544 of the Fair Work Act. The application referred to in that section is necessarily the application in which the applicant applies to a court for a relevant order; and
d)the time limit in s.545(5) is consistent with s.544 of the Act.
Conclusion
Here, part of Mr Dean’s claim is for non-payment of meal allowance. In my view no question of underpayment of that entitlement arises. If Mr Dean makes out his case that he was entitled to a meal allowance he will make out a case of non-payment rather than underpayment. There is no dispute that he was, in fact, not paid any of the relevant meal allowances. Subsection 545(5) will not be engaged.
However, in respect of his claim for unpaid overtime rates for paid rest breaks and his claim for unpaid wages, his claim is in respect of an underpayment because some payment has been made in respect of those entitlements. On his case, however, the payments have been too little because they have not been made at the correct rate or in respect of all time worked. In this event s.545(5) is engaged and the Court must not make an order in respect of any underpayment that relates to a period that is more than six years before the court application in relation to those underpayments commenced.
There is no doubt that in respect of the claim for underpaid overtime rates for paid meal breaks, the date proceedings were commenced was 24 March, 2015. Accordingly, no claim for any amounts under this head of claim can be maintained beyond 25 March, 2009.
However, the position is not so clear with respect to the claim for unpaid wages. That claim was not initially part of the claim pursued by Mr Dean in the Fair Work Commission or in this Court. It was added when Mr Dean filed and served an amended Form 5 application on 24 May, 2016 in which that claim was made for the first time. There had been earlier reference to such a claim in Mr Dean’s affidavit filed on 6 March, 2016 but the claim was not formally made until the filing of the amended Form 5 application.
I accept the respondent’s submission that the relevant time to reckon the six year period for the purposes of s.545(5) of the Act in respect of Mr Dean’s unpaid wages claim is the date from when he introduced that claim into these proceedings. I do not accept that should be seen as 6 March, 2016. In my view the appropriate date is 24 May, 2016 when an amended application was filed in which the claim was formally articulated.
Disposition
The respondent advances this application on a number of bases. It is sufficient to deal with it pursuant to s.17A(1) of the Federal Circuit Court of Australia Act 1999 (Cth) and rule 13.10 of the Federal Circuit Court Rules2001.
Insofar as Mr Dean’s claims concern underpayments in respect of paid rest breaks, he has no reasonable prospect of successfully prosecuting those claims that extend beyond 24 March, 2009 and the proceedings in respect of them ought to be dismissed.
Insofar as Mr Dean’s claims concern underpayments in respect of ordinary time wages (described by him as the rounding errors), he has no reasonable prospect of successfully prosecuting those claims that extend beyond 24 May, 2010 and the proceedings in respect of them ought to be dismissed.
The balance of Mr Dean’s claims are unaffected by s.545(5) of the Fair Work Act.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 19 January 2018
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