Ford v Thexton trading as Family Legal and Thexton Lawyers
[2014] QCATA 180
•16 July 2014
| CITATION: | Ford v Thexton trading as Family Legal and Thexton Lawyers [2014] QCATA 180 |
| PARTIES: | James Douglas Ford (Applicant/Appellant) |
| v | |
| Glenn Thexton trading as Family Legal and Thexton Lawyers (Respondent) |
| APPLICATION NUMBER: | APL443-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren, Deputy President Honourable K A Cullinane QC, Judicial Member |
| DELIVERED ON: | 16 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – where the Tribunal dismissed a claim in a minor civil dispute on the ground that the Tribunal had no jurisdiction to entertain the matter – where the appeal raises questions of the effect of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the Fair Work Act 2009 (Cth) – where the appeal raises issues as to the Tribunal’s jurisdiction to determine employment related claims – whether the matter is appropriate for the grant of leave to appeal PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the appellant claimed ‘pay in lieu of notice’ and superannuation – where the Tribunal has jurisdiction to hear claims for a debt or liquidated demand for money – where the contract did not provide an entitlement to terminate the contract by payment in lieu of notice – where the superannuation was not a contractual entitlement – whether the claims brought by the appellant where for a debt or liquidated demand for money EMPLOYMENT LAW – EFFECT OF INDUSTRIAL AWARDS, AGREEMENTS OR LEGISLATION ON EMPLOYMENT CONTRACT – GENERALLY – where the applicant claimed accrued annual leave and superannuation – whether the Tribunal has jurisdiction to hear claims arising under the Fair Work Act 2008 (Cth) – whether the available remedies are provided for in the Fair Work Act 2008 (Cth) – whether the claims arose under the Fair Work Act 2008 (Cth) Fair Work Act 2009 (Cth), s 12, s 26, s 27(2)(o), s 44, s 545(3) Akmeemana v Murray (2009) 190 IR 66 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
The applicant seeks leave to appeal against a decision delivered on 12 September 2013 dismissing a claim which he had brought in the minor civil dispute jurisdiction of the Tribunal. The Tribunal dismissed the claim on the grounds that it had no jurisdiction to entertain the matter.
The applicant’s claim arose out of his former employment as a solicitor with the respondent. The applicant’s claim had three component parts:
1. ‘2 weeks pay in lieu of notice’, claimed in the amount of $1,750.00;
2. Accrued annual leave entitlement of 7.6 hours amounting to $175.00;
3. Superannuation payable in the sum of $194.01.
The applicant contends, in respect of each of these components, that his is ‘a claim for a minor debt under a contract’.[1] Whether that properly describes the nature of each claim is a matter of considerable importance.
[1]Paragraph 1A of the appellants submissions filed on 4 December 2013.
There have been a number of previous cases in which the Tribunal has considered whether it has jurisdiction to hear and determine claims in its minor civil dispute jurisdiction in respect of matters arising under employment.
In considering those earlier cases, it must be borne in mind that each was dealing with a claim or claims said to arise from the particular employment. It is equally important to bear in mind that not all claims made in respect of employment are the same. Nor do they, necessarily, have the same legal source. All arise because there is, or has been, a relationship of employment between the parties. However, the legal source of the entitlement claimed may be the employment contract, statute, or both. In each case, it is important to understand what is the true nature, and legal source, of the claimed entitlement. It is common for claims arising in respect of employment to be collectively called “wages claims”; but that terminology is prone to mislead, and distracts attention from a consideration of the true nature of the claim.
It is necessary to understand the true nature of the claim in order to determine whether or not the Tribunal has jurisdiction in any particular case. Each of the three claims made by the applicant must be considered in this way.
The appeal raises questions of the effect of certain provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Fair Work Act 2009 (Cth) (‘FWA’) in respect of which there are conflicting decisions of the Tribunal. It also raises more general issues as to the Tribunal’s jurisdiction to hear and determine employment related claims in its minor civil dispute jurisdiction. It is, therefore, an appropriate matter for the grant of leave.
The primary jurisdictional issue – section 12 QCAT Act
The primary issue of jurisdiction in any claim brought before the Tribunal in respect of matters arising out of employment is whether the claim falls within the Tribunal’s minor civil dispute jurisdiction. If it does not, then the Tribunal will have no other jurisdiction under the QCAT Act to deal with the matter.[2] There is no other enabling act conferring jurisdiction upon the Tribunal in respect of such matters.[3]
[2]QCAT Act s 10(1)(a).
[3]QCAT Act s 10(1)(b).
Section 11 of the QCAT Act confers jurisdiction upon the Tribunal to hear and decide a minor civil dispute. A minor civil dispute is defined by section 8 and Schedule 3 to the QCAT Act to mean, relevantly, a claim to recover a debt or liquidated demand of money.[4]
[4]Paragraph 1(a) of the definition of “minor civil dispute”.
If the claim is not for a debt, or a liquidated demand of money, then there is no jurisdiction in the Tribunal to hear and determine that claim. It is for that reason that it is essential properly to identify the legal source of the entitlement, and whether the action for that entitlement lies in debt, statutory or contractual, or for breach of contract. If the claim is for breach of contract, the Tribunal will only have jurisdiction if the claim is liquidated.
Many claims arising from employment are for debts or liquidated demands. A claim for wages already earned through service, but unpaid, is such a claim; perhaps the most common. This is so whether the wages are prescribed by award or by contract.
Where the wages are prescribed by contract, the employee will be able to recover them as a debt in a court, or a tribunal, of competent jurisdiction. This would include QCAT. Where, on the other hand, the wages are prescribed by an award or other instrument made pursuant to some statute, whether the wages are recoverable as a debt in any court or tribunal will depend upon whether that statute contains provisions prohibiting that course.[5]
[5]Mallinson v Scottish Investment Co Ltd (1920) 28 CLR 66 at 72; True v Amalgamated Collieries of Western Australia Ltd (1940) 62 CLR 451 at 455; Josephson v Walker (1914) 18 CLR 691 at 697; Byrne & Frew v Australian Airlines (1995) 185 CLR 410 at 419.
Often a contract of employment will not expressly provide for the wages to be paid, and the rate of wages payable may be fixed by an award. The award may also determine other entitlements payable as incidents of the employment relationship. It has been observed by the High Court of Australia that:
… It is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and … the award operates with statutory force to secure those terms and conditions.[6]
[6]Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410 at 419 at 420 – 421 per Brennan CJ, Dawson and Toohey JJ.
In such circumstances, the statutory right to the payment of wages (and to other conditions fixed by the award) is imported into the employment relationship. The employment relationship is contractual in origin; but the entitlement to those award wages and other conditions remains statutory. It is the award which is the source of the entitlements, not the contract.[7]
[7]Ibid at 420.
Unpaid award wages can be recovered as a statutory debt. Subject to any exclusion by a statute, such a debt may be recoverable in the minor civil dispute jurisdiction of the Tribunal. Here, the relevant statute is the FWA. Its terms must be considered carefully to determine whether recovery in the Tribunal is permissible.
Earlier decisions of the Tribunal
Whether QCAT had jurisdiction to deal with claims arising from employment was first considered in Wiechers v Sodexo Remote Sites[8] by the Acting President, Judge Kingham. The claims were for unpaid wages and superannuation. The wages were said to arise under ‘the relevant award and collective agreement’, but their source was not otherwise specified. Her Honour found that each claim was a minor civil dispute as defined by the QCAT Act because it could be calculated by reference to various documents.
[8][2012] QCAT 16.
There was little discussion in her Honour’s reasons as to how she reached this conclusion. The matter was determined on the papers pursuant to s 32 of the QCAT Act without, it would appear, any detailed submissions on the issue.
In McGarry v Coates[9] the Appeals Tribunal considered whether the Tribunal had jurisdiction to entertain three claims arising under the FWA and the Plumbing and Fire Sprinklers Award 2010 made under that Act. The Tribunal at first instance had permitted claims for payment in lieu of notice, and for accrued holiday pay. The Tribunal had also purported to impose a civil penalty for ‘waiting time for payment’. On the appeal, the Appeals Tribunal found that the Tribunal lacked jurisdiction in respect of the claims. It referred to the acting President’s decision in Wiechers v Sodexo Remote Sites, but noted that it included little discussion of the special jurisdictional provisions in the FWA and their implementation for state Tribunals.
[9][2013] QCATA 32 (‘McGarry’).
The Appeals Tribunal considered the explicit reference to “Courts” in the FWA, including “eligible state and territory Courts”, to be of significance; more so than the absence of reference to Tribunals. The Appeals Tribunal observed that, although the definition of “eligible state or territory Courts” permitted its extension beyond those courts specified in the Act to others prescribed by Regulation, there had been no such extension to Tribunals in general, or to QCAT in particular.
In that regard the Appeals Tribunal expressed the opinion that the legislative draftsperson probably had in mind Courts under Chapter III of the Commonwealth Constitution. However, in Owen v Menzies[10] the Queensland Court of Appeal determined that QCAT is a Court of a State for the purposes of Chapter III of the Constitution. Therefore, that distinction may not be as significant as perceived by the Appeals Tribunal.
[10][2013] 2 Qd R 327.
The Appeals Tribunal then considered, as had been observed by the Member below, that the FWA, by operation of s 27(2)(o), did leave unaffected various state laws, including those dealing with ‘claims for enforcement of contracts of employment’. It expressed the view, however, that ‘that provision should be read strictly as a residuary clause preserving state jurisdiction over contracts of employment not governed by FWA awards’. It considered that such a construction left work to be performed by s 27(2)(o) because many employees remain award free, notwithstanding the broad reach of the FWA.
The Appeals Tribunal concluded that QCAT did not have jurisdiction to hear claims based on FWA awards, as distinct from “non-award” claims.
JF Hodge Pty Ltd v Brown[11] was determined by the Appeals Tribunal, constituted by the same Member, on the same day as McGarry. The claim there was for wages owing and unpaid for a four days work in the sum of $2,300.00. The employee had been employed as an electrician pursuant to a written agreement. The terms of the agreement were not set out, although it would appear that the rate at which the remuneration was claimed was provided for in the agreement. The agreement did not mention either the FWA or the Electrical, Electronic and Communications Contracting Award 2010 made under it. Nonetheless, because Brown was a National System Employee, and Hodge a National System Employer, the Appeals Tribunal found that those instruments applied to the employment.
[11][2013] QCATA 36.
For the same reasons as were articulated in McGarry, the Appeals Tribunal found the objection taken as to QCAT’s jurisdiction over FWA award claims (as distinct from non-award claims) should be upheld.
Those findings, of themselves, were no doubt correct; but they did not address the question of whether the wages (or all of them) were payable under the award or pursuant to the agreement. If the wages exceeded those set out in the award (which would seem likely given the sum) then any over-award component would be payable pursuant to the contract and not the award. The over-award amount would, in fact, be a “non-award” claim which claims were, as found by the Appeals Tribunal, within jurisdiction.[12]
[12]Section 139(1)(a) of the FWA permits what modern awards to include terms about minimum wages.
The issue of whether the Tribunal had jurisdiction in its minor civil dispute jurisdiction to entertain a claim for an entitlement arising under an award (in that case unpaid annual leave and leave loading) was next considered by the President, Alan Wilson J, in Ervin v Smipat Pty Ltdtrading as LJ Hooker Burleigh Heads.[13] The issue arose in the context of two questions of law having been referred to the President under s 117 of the QCAT Act. The particular questions of law referred were:
1.Is the Tribunal ‘an eligible state or territory Court’ within the meaning of s 12 of the FWA?
2.Is the QCAT Act a law which deals with ‘claims for enforcement of contracts of employment’ within the meaning of s 27(2)(o) of the FWA?[14]
[13][2013] QCATA 153 (‘Ervin’).
[14]Ibid at [8].
The President answered each of the questions in the negative.
In Ervin, the claim for unpaid annual leave arouse under clause 25 of the Real Estate Industry Award 2010; a modern award made under Chapter 2, Part 2-3, of the FWA. Clause 25 provided that annual leave was provided for in the National Employment Standards (‘NES’). The NES are found in Chapter 2, Part 2-2 of the FWA. By operation of s 61(1), Part 2-2 sets minimum standards that apply to the employment of employees of employers[15] which cannot be displaced. Part 2-2 Division 6 prescribes the NES for annual leave. Section 44 prohibits contravention by an employer of the NES.
[15]By s 60 the provisions apply to “National System Employees” and “National System Employers”. Sections 30C and 30D extend the meaning of each of those terms to include those who are employed, or employ, in a referring state which includes Queensland: see Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld).
Chapter 4 of the FWA provides for compliance and enforcement. Part 4-1 provides that certain provisions, including the prohibition against contravention of the NES contained in s 44, are civil remedy provisions: s 539. Section 545(3) confers jurisdiction upon ‘an eligible state or territory Court’ to order an employer to pay to, or on behalf of, an employee an amount if satisfied that the employer was required to pay the amount under the FWA or a fair work instrument,[16] and the employer has contravened a civil remedy provision by failing to pay the amounts.
[16]By s 12 a fair work instrument includes a modern award. It does not include a common law contract of employment.
An ‘eligible state or territory Court’ is defined in s 12 of the FWA. It is defined exclusively. The definition does not extend to QCAT. Clearly, therefore, the first question asked of the President required a negative answer.
The President also found that the Tribunal did not have jurisdiction under s 545(3) to award a payment of unpaid annual leave. That finding would also apply to any other NES entitlement. The essence of that finding was that the FWA provides, exclusively, for the bodies through which entitlements arising under the Act can be enforced.
Claims for entitlements arising under the FWA – QCAT has no jurisdiction
As has already been pointed out above, where the debt (or other entitlement) owes it origin to statute, the statute must be examined ‘to determine whether it contains anything inconsistent with recovery by civil action’.[17] Such an examination of the FWA compels the conclusion that civil recovery of entitlements created by, or under, that Act, is prohibited.
[17]Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 at 419.
The legislative scheme of the FWA is to create certain terms and conditions of employment; impose obligations to observe those terms and conditions; and to provide mechanisms of enforcement of those obligations.
Section 43 prescribes the main terms and conditions of employment of an employee ‘that are provided under this Act’ are those set out in the NES, and modern awards, enterprise agreements and workplace determinations made under the Act that apply to the employee. Sections 44, 45, 50 and 280, each proscribe contravention of, respectively, the NES, a modern award, an enterprise agreement and a workplace determination. Each of those provisions is established as a civil remedy provision for the purposes of Part 4-1 of the FWA.
As has already been identified, Chapter 4 provides for compliance and enforcement. The Explanatory Memorandum of the Fair Work Bill 2008 (Cth) described Part 4-1 as establishing ‘a single compliance framework for the new workplace relations system’. It referred to all the civil remedy provisions having been set out in the part ‘using a simple and user friendly table’, which identified, amongst other things, ‘the Courts to which a person may apply’ and ‘the remedies and penalties available to Courts in enforcing civil remedy provisions’.[18]
[18]Explanatory Memorandum, Fair Work Bill 2008 (Cth) [2120].
The memorandum explained that ‘having a single compliance framework ensures consistency across the Bill in terms of when particular persons can apply for orders and the types of orders that the Courts can make’.[19]
[19]Ibid [2121].
It is clear in respect of entitlements arising under the FWA that the Act itself provides the exclusive mechanisms for enforcement and recovery of those entitlements. That will be so whether the entitlement is created directly by the Act, such as through the NES, or indirectly through an award, agreement or determination made under the Act.
In respect of claims for such entitlements, QCAT has no jurisdiction. It is not a case of jurisdiction having been removed from QCAT by operation of s 26 of the FWA. Jurisdiction in respect of those matters was never conferred. The terms of the FWA clearly excluded it. This is the conclusion reached by the President in Ervin in respect of such claims.
Claims not arising under the FWA
Whether the claims for other entitlements arising not under the FWA, but under a contract of employment, can be brought in the Tribunal’s minor civil disputes jurisdiction requires separate consideration.
As noted above, any such claim would first have to be truly a debt or a claim for a liquidated demand of money. A claim which was truly one for damages for breach of the employment contract[20] would not satisfy those criteria and would, therefore, be beyond jurisdiction.
[20]Except for liquidated damages.
A claim for non payment of wages payable under a contract for a period in respect of which service was provided would be, in terms of s 12 of the QCAT Act, a claim which was within jurisdiction. It would be a contractual debt. The question which then arises is whether the jurisdiction of QCAT has been excluded by any provisions of the FWA. In our view, it has not.
In Ervin Wilson J having observed, at [16], that s 26 of the FWA provides that it is intended to apply to the exclusion of all state and territory industrial laws so far as they would apply to a National System Employee or a National System Employer, went on to consider whether the exception in s 27(2)(o) of the FWA applied to the QCAT Act, so as to place it within the exception to the exclusion otherwise created by s 26.
Given the terms of the second question which had been referred to the President it was understandable that the focus was upon whether s 27(2)(o) had the effect of preserving the operation of the QCAT Act. However, because s 27 provides exceptions to the operation of s 26, the preliminary question should have been whether the QCAT Act was legislation to which s 26 applied: did s 26 exclude the operation of the QCAT Act? The question referred to the President assumed that s 26 did apply so as to exclude the operation of the QCAT Act. His Honour’s consideration of the issues proceeded upon that assumption. But the assumption is incorrect.
As observed by his Honour, s 26(1) of the FWA provides that the FWA is intended to apply to the exclusion of all ‘state and territory industrial laws’. Section 26(2) defines a ‘state or territory industrial law’ as:
(2)A State or Territory industrial law is:
(a) a general State industrial law; or
(b)an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:
(i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action);
(ii)providing for the establishment or enforcement of terms and conditions of employment;
(iii)providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment;
(iv)prohibiting conduct relating to a person's membership or non-membership of an industrial association;
(v)providing for rights and remedies connected with the termination of employment;
(vi)providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or
(c)a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or
(d) a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or
(e)a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or
(f)a law of a State or Territory that entitles a representative of a trade union to enter premises; or
(g)an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or
(h)either of the following:
(i)a law that is a law of a State or Territory;
(ii)an instrument of a legislative character made under such a law; that is prescribed by the regulations.
Section 26(3) provides that each of the main industrial statutes in New South Wales, Queensland, Western Australia, South Australia and Tasmania are general industrial laws.[21] For Queensland, that is the Industrial Relations Act 1999 (Qld).[22] The QCAT Act is not a general State industrial law. Section 26(2)(a) does not exclude the QCAT Act.
[21]Victoria referred its industrial powers to the commonwealth in 1996 pursuant to s 51(37) of the Constitution; see Commonwealth Powers (Industrial Relations) Act 1996 (Vic).
[22]Section 26(3)(b).
The QCAT Act does not have as a main purpose any of the matters listed in s 26(2)(b). Nor is it a law that: deals with leave; provides for a Court or Tribunal to make an order in relation to equal remuneration; provides for the variation or setting aside of rights and obligations arising under unfair contracts or arrangements; or provides rights of entry to trade unions representatives.
Because it has none of those main purposes, and does not deal with any of those matters, s 26(2)(b)-(f) does not exclude the QCAT Act. Nor is the QCAT Act a law of the State prescribed by the regulations: s 26(2)(h) does not apply.
Therefore, it is strictly unnecessary to consider whether it is a law or an act of state which ‘applies to employment generally’. However, for completeness, we would record that, in our view, it is not. It is not a law that applies to all employers and employees in the state or all of them except those excluded by reference to class or otherwise.[23]
[23]As defined by s 26(4).
Therefore, in so far as QCAT has jurisdiction in respect of claims arising from a contract of employment that satisfy the description of debts or liquidated demands for money, that jurisdiction is not excluded by s 26 of the FWA.
As a consequence, it is unnecessary to consider whether jurisdiction under the QCAT Act is saved by operation of s 27(2)(o). Section 27(2) can have no application to the QCAT Act because it is not a state or territory industrial law excluded by s 26.
To the extent that the President in Ervin, and the Appeals Tribunal in JF Hodge Pty Ltd v Brown and McGarry concluded differently, we respectfully disagree with those conclusions.
Claims for debts or liquidated demands arising from a contract of employment, but not the FWA or an instrument made under it, can be recovered in QCAT in its minor civil dispute jurisdiction. This would include claims for above award wages which were earned but unpaid.
This construction of the FWA is supported by ss 542 and 543 which relate to safety net contractual entitlements of a National System Employer or a Nation System Employee. A safety net contractual entitlement is defined by s 12 to mean an entitlement under a contract between an employer and an employee that relates to any of the subject matters described in s 61(2) or s 139(1). Section 61(2) deals with the NES. Section 139(1) provides the matters which may be the subject of a modern award. They include minimum wages, overtime rates, penalty rates, annualised wage arrangements, leave, leave loading and superannuation.
Section 542(1) provides that for the purposes of Part 4-1 of the FWA a safety net contractual entitlement (that is the entitlement under the contract) also has affect as an entitlement under the FWA. The use of the word ‘also’ in s 542(1) clearly establishes that the entitlement created is a new statutory entitlement, separate and distinct from the contractual entitlement.
Section 543 then provides a new means of enforcement. It provides for application to be made to the Federal Court of Australia or the Federal Circuit Court of Australia to enforce an entitlement arising under s 542(1). Again this new means of statutory enforcement is separate and distinct from whatever other means of enforcement may be available.
These matters are made clear by the Explanatory Memorandum which describes ss 541, 542 and 543 as being intended to facilitate and streamline enforcement of employment entitlements for national system employers and employees. It identifies safety net contractual entitlements to include, ‘a contractual entitlement to wages in excess of minimum wages set out in a modern award or enterprise agreement’.[24] The purpose and effect of ss 542 and 543 are explained as follows:
Clauses 542 and 543 are designed to improve access to enforcement mechanisms in the Federal Court by removing technicalities associated with establishing that an employment entitlement that arises under a contract of employment is within the original or accrued jurisdiction of the Court.
Clause 542(1) provides that a safety net contractual entitlement (e.g. a wages entitlement) of a national system employer or employee as it exists from time to time in a contract of employment also has effect as an entitlement under the Bill. Sub clause 542(2) ensures that the entitlements created by clause 542 have effect subject to modification by laws and instruments, including the common law, which give rise to and affect the operation, from time to time, of the corresponding contractual entitlement.
The effect of clauses 542 and 543 is that a national system employer or national system employee may apply to the Federal Court or the Federal Magistrates Court to enforce a statutory entitlement corresponding to a safety net contractual entitlement. This is an addition to the right to pursue breaches of a contract of employment in a State or Territory Court. (Underlining added) [25]
[24]Explanatory Memorandum, Fair Work Bill 2008 (Cth),[2134].
[25]Ibid [2142] – [2144].
The Explanatory Memorandum makes clear that means of enforcement of contractual entitlements which otherwise exist remain available. The Act does not purport to exclude or replace those enforcement measures, but rather to create a further, statutory entitlement able to be enforced in Federal Courts.
The jurisdiction of QCAT to hear and determine claims arising under a contract of employment and which exceed entitlements under the FWA or instruments made under it is not affected by operation of the FWA. But in every case that jurisdiction is dependant upon the claim being for a debt or a liquidated demand for money.
The claims of Mr Ford
In the present case none of the claims brought by Mr Ford satisfied the description of a debt or a liquidated demand for money.
The claim for pay in lieu of notice, whilst claimed at the rate of two weeks wages is, properly understood, a claim for damages for breach of contract. The contract did not provide an entitlement, on the part of Mr Thexton, to terminate the contract by payment in lieu of notice. The terms of the agreement upon which Mr Ford relies are contained in emails exchanged on 18 December 2012. As to notice, the final email sent on 18 December 2012 at 1:11pm records:
2 weeks notice required during the probation period, and thereafter a 9 month contract? Or a minimum 1 month notice after the probation period expires. Agree x 2 weeks notice. (Underlining added)
It is apparent from the email exchange that Mr Ford had originally proposed that which is underlined in the extract above. Mr Thexton had responded:
Termination – 2 weeks notice would apply to both parties to the employment.
Mr Ford’s notation in reply ‘Agree 2 weeks notice’ is an acceptance of the term proposed by Mr Thexton. Therefore, the only term agreed upon was one whereby either party could terminate the employment upon two weeks notice given to the other party. This contractual entitlement was greater than that provided under the NES which required only one week notice to be given when the employee had been employed for less than one year.[26]
[26]FWA s 117(3)(a).
Importantly, the contractual term did not make provision for payment of two weeks wages (or any other sum) in lieu of notice. Notice, and pay in lieu of notice, are not the same thing.[27] Where the contract of employment provides only for termination on notice, and not payment in lieu of such notice, then termination affected without the provision of the requisite notice, even with a purported payment in lieu, will be a breach of the contract. The injured party who was entitled to the notice may sue for damages.[28] The action is one for damages for wrongful dismissal.
[27]Martin v Tasmania Development and Resources (1999) 89 IR 98 at [54].
[28]Ibid; Sanders v Snell (1998) 196 CLR 329 at [16] – [17].
Whilst, ordinarily, the starting point for calculating damages for wrongful dismissal will be the wages which would have been earned by the employee during the requisite period of notice, that is not necessarily the ultimate measure of the damages which might be recovered. For example, damages might also be awarded for the loss of opportunity.[29]
[29]See, for example, WT Partnership (Aust) Pty Ltd v Sheldrick (2000) 96 IR 202 at [37] – [39]; Martin v Tasmania Development and Resources, Ibid at [101] – affirmed Tasmania Development and Resources v Martin (2000) 97 IR 66 at [37] – [38].
Furthermore, there is an obligation upon the injured party to mitigate his or her damages.[30] In an appropriate case, the costs associated with mitigation may also be awarded as damages.[31]
[30]Bagnall v National Tabacco Corporation of Australia Ltd (1934) 34 SR (NSW) 421 at 429; Tasman Capital Pty Ltd v Sinclair (2008) 75 NSW LR 1 at [55].
[31]Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559 at [45].
This claim serves to demonstrate clearly the need for the proper identification of the true nature of the claim. A claim for damages can never be characterised as a claim for a debt or liquidated demand of money.[32] By contrast, if there was a contractual right to terminate the contract by a payment in lieu of notice, then that amount could be recovered as contractual debt in the Tribunal’s minor civil dispute jurisdiction.
[32]Unless the contract provides expressly for liquidated damages.
In this case, however, the amount was not recoverable in QCAT.
Annual leave
Mr Ford’s claim for annual leave arises under the NES in the FWA. His contract is silent on the issue.
As such, for the reasons set out above, it was never a claim which was recoverable other than as provided for in the FWA. QCAT had no jurisdiction in respect of the claim.
Superannuation
The claim for superannuation was also not a debt or a liquidated demand for money recoverable in QCAT.
The references to superannuation in the email exchange in which the contractual terms of the employment were agreed referred only to superannuation being ‘the standard 9%’ into a fund of Mr Ford’s choice. That, in our view, gave rise to no separate contractual entitlement. It merely referred to the obligation imposed by law in respect of superannuation contributions which may be paid on behalf of Mr Ford.[33]
[33]Akmeemana v Murray (2009) 190 IR 66 at [35].
In any event, even if the entitlement was contractual, enforcement would be by an action for damages for breach of contract which, for reasons already stated, would not be within QCAT’s minor civil dispute jurisdiction.
The Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Guarantee ChargeAct 1992 (Cth) do not confer any entitlement upon an employee to be paid superannuation contributions or, directly, to have contributions made on his or her behalf. Nor do the laws have within them any mechanism for enforcement if the employer fails to make contributions. This is, essentially, because the laws are tax laws.
In some instances, the obligation to make contributions will be specified in an award or an agreement. In such cases the statutory remedies for enforcement of awards or agreements, such as pursuant to s 545 of the FWA, would be available. However, as discussed above, this could not occur within QCAT’s minor civil dispute jurisdiction.
Even when recoverable pursuant to an award or agreement the contributions are not able to be ordered to be paid to the employee.[34] Relevantly, s 12(1) of the QCAT Act limits the exercise of the Tribunal’s minor civil dispute jurisdiction to circumstances in which a relevant person has applied to the Tribunal to deal with the dispute. A relevant person for a claim to recover a debt or liquidated demand of money, is a person ‘to whom the debt is owed or money is payable’. As the superannuation contributions are never a debt owed to the employee, and the employee is not a person to whom they are payable, then the employee would be unable to satisfy the definition of being a relevant person with a standing to bring such a claim in the minor civil dispute jurisdiction.
[34]Workplace Ombudsman v Saya Cleaning Pty Ltd (No.2) (2009) 179 IR 358 at [6].
Disposition
For these reasons, we would grant leave to appeal and dismiss the appeal.
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