Fair Work Ombudsman v F.L. Press Pty Ltd and Anor (No.2)

[2015] FCCA 2967

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v F.L. PRESS PTY LTD & ANOR (No.2) [2015] FCCA 2967

Catchwords:
PRACTICE & PROCEDURE – Whether interlocutory judgment ordering compensation should be stayed pending decision on penalties to be imposed for contraventions of the Workplace Relations Act 1996, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Fair Work Act 2009.

Legislation:
Workplace Relations Act 1996, ss.182, 720, 722
Fair Work Act 2009, ss.44, 45, 545, 547
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, item 5 of sch.16

Cases cited:
Fair Work Ombudsman v F.L. Press & Anor [2015] FCCA 1578

Applicant: FAIR WORK OMBUDSMAN

First Respondent: F.L. PRESS PTY LTD (ACN 003 627 325)

Second Respondent: THEODORE SKALKOS

File Number: SYG 1437 of 2012

Judgment of: Judge Cameron

Hearing date: Decided on the papers

Date of Last Submission: 14 September 2015

Delivered at: Sydney

Delivered on: 4 November 2015

REPRESENTATION

Counsel for the Applicant: Mr J. Darams

Solicitors for the Applicant: Office of the Fair Work Ombudsman

Counsel for the Respondents: Mr R. Moore

Solicitors for the Respondents: Koutzoumis Lawyers

ORDERS

1. The first respondent, F.L. Press Pty Ltd, pay Mr Nikola Jovic, pursuant to s.720 of the Workplace Relations Act 1996 (“WR Act”) and s.545 of the Fair Work Act 2009 (“FW Act”), the sum of $83,210.34, being the total amount underpaid to him as a result of the first respondent’s contraventions of s.182(1) of the WR Act, item 5 of sch.16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, and ss.44(1) and 45 of FW Act.

2. The first respondent pay Mr Nikola Jovic, pursuant to s.722 of the WR Act and s.547 of the FW Act, an amount of interest on the sum in order 1 above, to a total of $44,693.73.

3. The amounts in orders 1 and 2 be paid within 28 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1437 of 2012

FAIR WORK OMBUDSMAN

Applicant

And

F.L. PRESS PTY LTD (ACN 003 627 325)

First Respondent

THEODORE SKALKOS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. From 1 July 2003 until 11 January 2011 Nikola Jovic was employed by the first respondent (“FL Press”) on its Serbian language newspaper, the Novosti.  In a judgment published on 18 June 2015, Fair Work Ombudsman v F.L. Press & Anor [2015] FCCA 1578 (“first judgment”), I relevantly found:

   a)Mr Jovic’s evidence was to be preferred to that of Mr Skalkos, the second respondent and proprietor of FL Press, and Mr Wong, FL Press’s payroll officer;

   b)one of Mr Jovic’s roles was to work on page layouts for the Novosti; and

   c)Mr Jovic worked for the Novosti as a journalist, reporting on events, taking photographs, making discretionary decisions of an editorial nature concerning the newspaper’s layout, content and presentation;

   d)from the commencement of his employment with FL Press until the last pay period in June 2010 Mr Jovic should have been paid in accordance with the pay scales published under the notional agreement preserving the Journalists (Specialist Publications) (State) Award (NSW) (“Specialist Publications NAPSA”) and the subsequent and related transitional minimum wage instrument under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FW (TPCA) Act”);

   e)from the first pay period after 1 July 2010 until his departure at the close of business on 11 January 2011 Mr Jovic was entitled to be paid in accordance with the relevant transitional pay rate calculated pursuant to the Journalists Published Media Award 2010 (“Journalists Modern Award”);

   f)throughout his employment with FL Press, Mr Jovic was underpaid his ordinary time wages;

   g)under the Specialist Publications NAPSA Mr Jovic was entitled to have been classified as a grade 4 employee and to have been paid according to that grading;

   h)Mr Jovic was entitled to monetary compensation for such underpayments in respect of the period commencing six years before the institution of this proceeding on 29 June 2012 and the cessation of his employment on 11 January 2011;

   i)Mr Jovic was also entitled to receive a redundancy payment equivalent to twenty weeks’ pay, less certain amounts paid to him in 2010; and

   j)Mr Jovic was entitled to payment in lieu of notice equivalent to one week and one day’s wages.

2. As, presumably through oversight, evidence of the relevant pay scales had not been adduced at the hearing, I was of the view that the parties should be able to agree on the applicable rates.  In the period following a directions hearing on 3 July 2015 the parties discussed what pay scales would be appropriate to apply when calculating Mr Jovic’s underpayments and in large part reached agreement on that issue.  However, two matters were not resolved and have been the subject of further written submissions.  The first concerned the fact that the Specialist Publications NAPSA divided grade 4 employees into two classes, one of which was paid more than the other.  The second issue concerned when FL Press should pay Mr Jovic his compensation.

3. The parties agreed that these matters would be decided on written submissions without a further oral hearing.

Appropriate rate

1. The higher classification within grade 4 under the Specialist Publications NAPSA was applicable to employees “required to use a visual display terminal to create camera-ready copy”.  The award defined “camera-ready copy” as:

   … editorial copy for use in production and for which all typesetting commands (other than typesetter conversion commands) required by the employer to be made have been inserted by one or more employees to whom this award applies.

2. I interpret the award to mean that grade 4 employees who use computers to prepare copy for publication, specifically the final draft of an item for publication, were to be paid at the higher rate.

3. The Fair Work Ombudsman (“Ombudsman”) submitted that evidence before the Court demonstrated that Mr Jovic had prepared the content and design of the Novosti before it was sent for printing and that in the period in respect of which underpayment was found Mr Jovic used computers to perform his work.  The respondents argued that a finding had been made in the first judgment that the lower of the two grade 4 amounts applied to Mr Jovic.  Reference was made in this regard to [224] of that judgment where it was said:

   I found that at all times before 1 January 2010 relevant to these proceedings, Mr Jovic should have been paid under the Specialist Publications APCS and then the transitional APCS as a writer with a grade 4 grading.  The Ombudsman alleged that a number of pay rates applied to Mr Jovic over the period 27 March 2006 to 30 June 2009 but adduced no evidence of them, presumably through oversight.  However, exhibit 2, which was a copy of the State Award as at 27 March 2006, stated that a grade 4 employee was entitled to be paid $828.20 per week or $21.79 per hour for a thirty-eight hour week.  As Mr Jovic was, according to his pay record which was document 14 in exhibit 3, paid only $14.58 per hour in September 2010, I find that he was underpaid whatever may have been the proper pay rates in 2006, 2007, 2008 and 2009.

4. The respondents submitted that that passage indicated that the Court had considered which of the two grade 4 classifications applied to Mr Jovic and had concluded that the less well paid one did.  The respondents also submitted that the evidence was insufficient to support a finding that the visual display terminal at which Mr Jovic worked was of the kind to which the Specialist Publications NAPSA applied and that the outcome it produced was “camera-ready copy”.

Consideration

1. Contrary to the respondents’ submissions, the first judgment did not express or represent a finding concerning the amount which should have properly been paid to Mr Jovic other than that he should have been paid under the Specialist Publications NAPSA as a grade 4 employee and under the Journalists Modern Award as a band 2 level 8 employee.  Because evidence had not been adduced concerning the particular amounts payable under the NAPSA and the award at all relevant times, no specific findings on such matters were able to be made in the first judgment.  The paragraph to which the respondents have referred pointed only to the fact that the amount which Mr Jovic was paid was less than he should have been paid, the point of reference being the lower of the two amounts set out in the award as it stood on 27 March 2006.  It would have been inappropriate to have sought to make a finding upon which of the two classifications under grade 4 was the more appropriate because the parties had not addressed the issue.

2. Turning now to that question, I find that Mr Jovic should have been paid throughout the period in respect of which he has been found entitled to compensation by reference to the higher of the two grade 4 amounts.   The evidence satisfies me that the Novosti office had computers and that Mr Jovic used computers to do his work including the final drafts of items for publication and designs for the newspaper itself together with individual advertisements and notices.  Relevant evidence touching on those issues is to be found in the first judgment at [57], [60], [63], [64], [106] and [107].

3. The parties agreed on the sums which were to be awarded depending on which of the grade 4 classifications was to apply. 

4. Based on the agreement, I find that Mr Jovic is entitled to compensation for unpaid wages, unpaid redundancy pay and unpaid pay in lieu of notice in the total sum of $83,210.34 together with interest of $42,778.75 up to the date of the first judgment, 18 June 2015.  Since that time, further interest of $1,914.98 has accrued.  There will be an order that FL Press pay Mr Jovic the sum of $44,693.73 in respect of interest.

Date of payment

1. The respondents argued that all orders in the proceeding including orders for the payment of money should be made at the conclusion of the proceeding and after the penalty hearing listed for 4 November 2015.  They submitted that Mr Jovic would not be disadvantaged by such an approach as he would be entitled to an amount for interest on the compensation amount.

2. The nub of the respondents’ submissions was expressed as follows:

   More importantly, the position of the Respondents, and in particular that of the First Respondent, would be fully protected as any decision by it to appeal, should it decide to do so, would be made after the conclusion of the Proceedings in full when the time for appeal then runs.

   If a monetary order was made in advance of the final determination of all matters before the Court, including those concerning pecuniary penalty, a situation may arise where further interlocutory application might need to be made at further cost to the parties on the part of the First Respondent.

   This potentially can be readily avoided by the Court making all orders at the end of these Proceedings. (para.14)

3. The respondents submitted that where a respondent did not consent to the making of compensation orders in advance of a penalty hearing the Court ought to determine all matters in issue at the same time and dispose of the totality of the proceeding in one set of orders.

4. The Ombudsman contended that there was no reason why the Court should not make an order that the compensation be payable within twenty-eight days, noting that:

   a)Mr Jovic has been owed a substantial amount of money for a long time;

   b)once all the relevant factual findings were made there would be no reason why appropriate orders should not also be made;

   c)no reason had been advanced as to why payment could or should not be made within twenty-eight days; and

   d)one of the issues to be considered in the penalty stage of the proceeding would be the loss suffered by Mr Jovic and any rectification which might have been effected.  It was submitted that ordinary payment of compensation at this time was in the respondents’ interests.

Consideration

1. Contrary to the respondents’ submission, the fact that an unsuccessful respondent does not wish to pay compensation which has been found should be made is no basis for the Court to stay its hand in pronouncing an order that compensation which is owed should be paid.  It may be unusual that the quantification of compensation owed by FL Press to Mr Jovic has been dealt with separately from the penalties which may be imposed on FL Press and Mr Skalkos for their contraventions of the Workplace Relations Act 1996, the FW (TPCA) Act and the Fair Work Act 2009.  However, that is no reason to further delay payment to Mr Jovic of the amounts which have been owed to him for some time.  The possibility that the respondents might seek leave to appeal from such compensation orders as the Court might make should not discourage the Court from performing its function.

2. Finally, had the Ombudsman not sought an order that compensation be payable within twenty-eight days, no order to that effect would have been made and compensation would have been payable immediately, as is the usual effect of a court order.  However, as the respondents did not suggest that compensation be payable forthwith and the Ombudsman had expressly sought a payment period of twenty-eight days, an order to that effect will be made.

Conclusion

1. There will be orders in accordance with the orders proposed by the Ombudsman in her written submissions filed on 7 September 2015.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  4 November 2015