Dixon v Pro-Tect Security Management Pty Ltd

Link copied
Case Copied 38 min read

Federal Circuit and Family Court of Australia

(DIVISION 2)

Dixon v Pro-Tect Security Management Pty Ltd [2022] FedCFamC2G 854  

File number: SYG 1973 of 2021
Judgment of: JUDGE CAMERON
Date of judgment: 18 October 2022 
Catchwords:  INDUSTRIAL LAW – alleged underpayment of Award entitlements – alleged underpayment of the minimum wage under the Award – alleged contravention of the Award in breach of the Fair Work Act 2009 (Cth).
Legislation:

Fair Work Act 2009 (Cth) ss 45, 47, 48, 545, 547, 550.

Evidence Act 1995 (Cth) s 140.

Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rule 2021 rr. 13.04, 13.05, 13.06.

Cases cited: Fair Work Ombudsman v Raying Holding Pty Ltd (No 2) (2017) 324 FLR 289
Division: Fair Work
Number of paragraphs: 91
Date of hearing: 28 September 2022
Place: Sydney
Counsel for the Applicant: Mr A. Neal
Solicitor for the Applicant: Slater & Gordon
Counsel for the Second Respondent: Mr D. Burwood
Solicitor for the Second Respondent: Elysium Law

ORDERS

SYG 1973 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JAI DIXON

Applicant
AND:

PRO-TECT SECURITY MANAGEMENT PTY LTD ABN 51145301391

First Respondent

TAREK SOBH

Second Respondent

STEVE MOSS

Third Respondent

order made by:

JUDGE CAMERON

DATE OF ORDER:

18 October 2022

THE COURT ORDERS THAT:

1.The application as against the first respondent stand over to a future date for directions as to the future conduct of the matter.

2.The applicant provide the Court within 28 days a spreadsheet particularising the first respondent’s underpayments of his wages calculated in accordance with these reasons.

3.The application as against the second respondent stand over to a future date for directions as to further submissions on his offer to make a payment to the applicant.

4.As against the third respondent, the application be dismissed.

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

JUDGE CAMERON

Introduction

  1. From 25 September 2018 to 11 September 2020, the first respondent, Pro-Tect Security Management Pty Ltd (“Pro-Tect Security”), employed the applicant, Mr Dixon, as a casual security officer at Tweed Mall in Tweed Heads, New South Wales.  Mr Dixon alleged that Pro‑Tect Security had breached the Security Services Industry Award 2010 (“2010 Award”) and the Security Services Industry Award 2020 (“2020 Award”) and the Fair Work Act 2009 (Cth) (“FW Act”) by underpaying him his entitlement to minimum pay at the Security Officer Level 2 classification as well as his entitlements to weekend, overnight and public holiday penalty rates and to first aid officer and supervisor allowances. As there was no relevant…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Dixon v Pro-Tect Security Management Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FedCFamC2G 854
Decision Date

CaseChat Overview and Summary

In the case of Dixon v Pro-Tect Security Management Pty Ltd, the Federal Circuit and Family Court of Australia dealt with a claim of underpayment of wages and entitlements by Mr Dixon, a former employee of Pro-Tect Security Management Pty Ltd. The defendant, Pro-Tect Security Management, and its director, Mr Sobh, did not respond or appear at the trial, leading to a default judgment application by Mr Dixon. The case revolved around whether Mr Dixon was correctly classified and paid as a Security Officer Level 1, and if he was entitled to higher wages as a Security Officer Level 2, along with other entitlements such as casual loading, evening shift, weekend, and public holiday pay, supervision allowance, and first aid allowance.

The legal issues the court needed to resolve included the correct classification of Mr Dixon's role, the applicable minimum wage rates under the Award, the penalties for working specific shifts and days, and the accessorial liability of Mr Sobh and Mr Moss. The court examined the roles and responsibilities of Mr Dixon, comparing them to the definitions of Security Officer Level 1 and Level 2, and considered whether Mr Dixon's duties warranted a higher classification. Additionally, the court assessed whether the payments made to Mr Dixon complied with the Fair Work Act 2009 and the relevant Award.

The court found that Mr Dixon's role at Tweed Mall did not meet the criteria for a Security Officer Level 2, as it involved basic crowd control functions and did not require the level of complexity and responsibility associated with that classification. The court accepted Mr Sobh's evidence that Mr Dixon had been paid according to the correct classification of Security Officer Level 1, and that he had not been paid the casual loading. Consequently, the court decided to decline granting a default judgment under rule 13.05(c) but proceeded to make an order under rule 13.05(d) in the absence of Pro-Tect Security and Mr Moss.

The final orders of the court reflect that Pro-Tect Security Management Pty Ltd and Mr Moss are liable for the underpayment of $2,958.39 to Mr Dixon, but no other entitlements were awarded. The court's decision was based on the evidence presented and the absence of the defendants, leading to a determination that Mr Dixon had not been misclassified or entitled to additional payments beyond what was already acknowledged as underpaid.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Dixon deposed that he resigned from Pro-Tect Security before his stipulated deadline of 27 August 2020 and that his last day of employment had been 11 September 2020. Respondent’s Evidence Mr Sobh deposed that on 4 November 2019 he purchased and became director of Pro-Tect Security, which was a subcontractor for a number of different security companies including Southern Cross Group, for whom it subcontracted at the Tweed Mall site. He said that he had worked in the security industry for 20 years and knew the Award’s rates. Mr Sobh deposed that on 23 March 2022 he sold Pro-Tect Security to a third party.Mr Dixon’s Employment Mr Sobh’s evidence was that he was aware when he purchased Pro-Tect Security that it had employed Mr Dixon since 5 September 2018 as a casual level 1 security officer at the Tweed Mall site. His evidence was that the roster and positions of Protect-Security’s employees including, relevantly, Mr Dixon did not change upon him taking control of the company. When shown the 7 November 2019 payslip that was annexed to Mr Dixon’s affidavit, Mr Sobh said that it reflected the pay rate for a Security Officer Level 1. Mr Sobh said that Mr Dixon’s role involved: (a)providing basic crowd control functions;(b)monitoring and guarding the different businesses of Tweed Mall;(c)responding to basic fire or security alarms;(d)drafting incident reports;(e)locking and unlocking of Mall doors; and(f)checking emergency exits and patrolling carpark. Mr Sobh’s evidence was that the Pro-Tect security officers at the Tweed Mall had to move around because they were patrolling the whole shopping centre and its car park. He said that their job was to be on the ground and not watching CCTV screens. First aider Mr Sobh said that the building manager was the first responder for first aid matters which meant that Pro-Tect would not be paid for responding to such matters. Lack of Supervisor role Mr Sobh deposed that Pro-Tect Security’s contract for Tweed Mall involved a “rotating roster of one guard every 8 hours” and that Pro-Tect Security never rostered more than one guard at Tweed Mall. His evidence was that a supervisor role could not be undertaken at the Tweed Mall site as there are no other security officers to supervise during Mr Dixon’s rostered hours. Mr Sobh’s evidence was that there was no signed contract or letter of variation which stated that Mr Dixon was a supervisor and neither he nor any of his staff had ever “confirmed” that Mr Dixon was to take on a supervisor role at Tweed Mall.Underpayments issue Mr Sobh’s evidence was that Mr Dixon did not raise an underpayment issue with him while he was director of Pro-Tect Security. Mr Dixon did approach him for a pay rise which he agreed to, but Mr Dixon never said that his new pay rate was wrong. Mr Sobh’s evidence was that after Mr Dixon’s resignation on 11 September 2020, he had been contacted by the Fair Work Commission (“FWC”) in relation to a complaint by Mr Dixon about underpayment of wages. His evidence was that following this complaint he directed the payroll manager to undertake a review Mr Dixon’s wage payments which found that, based on wage rates for level 1 guards under the Award, he had been underpaid $2,958.39. He agreed that Mr Dixon had not been paid the casual loading. Consideration Issues

Decision

Reasons for decision

The cross-examination of Mr Dixon and Mr Sobh did not identify significant shortcomings in their accounts. Except where the contrary is apparent in these reasons, I accept their evidence.Application for default judgments Neither Pro-Tect Security nor Mr Moss filed a response or appeared at the trial. Mr Dixon sought default judgment against them. The Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021 relevantly provide:13.04 When a party is in default …(2)For the purposes of rule 13.05, a respondent is in default if the respondent: (a) has not satisfied the applicant’s claim; and (b) fails to: (i)give an address for service before the time for the respondent to give an address has expired; or (ii)file a response before the time for the respondent to file a response has expired; or …13.05 Orders on default …(2) If a respondent is in default, the Court may: …(c)if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief that: (i) the applicant appears entitled to on the statement of claim; and (ii) the Court is satisfied it has power to grant; or (d) give judgment or make any other order against the respondent; or …(6)The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.13.06 Default of appearance of a party (1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following: …(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding. (2)If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just. As the trial has proceeded as against Mr Sobh, whose alleged liability depends on findings of contravention being made against Pro-Tect Security, and as the alleged liability of Mr Moss also depends on such a finding, I conclude that the appropriate course is to decline to decide the absent parties’ cases under r.13.05(c) but to do so under r.13.05(d), having conducted a trial in their absence as permitted by r.13.06(1)(e).Classification The principal element of Mr Dixon’s case was that he had been paid as a Security Officer Level 1 whereas his proper classification had been Security Officer Level 2 which was a role paid at a higher rate. The two classifications are defined and described in similar terms but they are distinguished by differing degrees of complexity and responsibility. In particular, a Security Officer Level 2 “works from complex instructions and procedures”, “co-ordinates work in a team environment” and “is required to act as first response to security incidents/matters”, whereas a Security Officer Level 1 exercises limited discretion and has no decision-making duties. It is expected that a Security Officer Level 2 may be called on to undertake security tasks associated with ATMs whereas the equivalent responsibility of a Security Officer Level 1 is to “watch, guard or protect persons and/or premises and/or property at sites/locations where the complex use of computer technology is not required”. A Security Officer Level 2 may be called on to perform crowd control functions but a Security Officer Level 1 may be called on to perform “basic” crowd control. In circumstances where there was usually only one security officer on duty, the likelihood of any crowd control at the Tweed Mall being more than “basic’ seems remote.

Ratio Decidendi

Legal Principle Established

Mr Sobh’s evidence was that after Mr Dixon’s resignation on 11 September 2020, he had been contacted by the Fair Work Commission (“FWC”) in relation to a complaint by Mr Dixon about underpayment of wages. His evidence was that following this complaint he directed the payroll manager to undertake a review Mr Dixon’s wage payments which found that, based on wage rates for level 1 guards under the Award, he had been underpaid $2,958.39. He agreed that Mr Dixon had not been paid the casual loading. Consideration Issues In his written submissions Mr Dixon identified the following as the issues for resolution at this stage of the proceeding:(a)whether he had been entitled to be paid as a Security Officer Level 2;(b)the applicable minimum rate of pay under the Award for ordinary hours of work including casual loading;(c)the applicable penalties to be paid to him for working evening shifts, weekends and public holidays;(d)whether he had been entitled to be paid a supervision allowance;(e)whether he had been entitled to be paid a first aid allowance; and(f)the accessorial liability of Mr Sobh and of Mr Moss, if any.Credit The cross-examination of Mr Dixon and Mr Sobh did not identify significant shortcomings in their accounts. Except where the contrary is apparent in these reasons, I accept their evidence.Application for default judgments Neither Pro-Tect Security nor Mr Moss filed a response or appeared at the trial. Mr Dixon sought default judgment against them. The Federal Circuit and Family Court of Australia Division 2 (General Federal Law) Rules 2021 relevantly provide:13.04 When a party is in default …(2)For the purposes of rule 13.05, a respondent is in default if the respondent: (a) has not satisfied the applicant’s claim; and (b) fails to: (i)give an address for service before the time for the respondent to give an address has expired; or (ii)file a response before the time for the respondent to file a response has expired; or …13.05 Orders on default …(2) If a respondent is in default, the Court may: …(c)if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief that: (i) the applicant appears entitled to on the statement of claim; and (ii) the Court is satisfied it has power to grant; or (d) give judgment or make any other order against the respondent; or …(6)The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.13.06 Default of appearance of a party (1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do any of the following: …(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding. (2)If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.05(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just.