Griffiths v Hanselmann
[2018] FCCA 1374
•1 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRIFFITHS v HANSELMANN | [2018] FCCA 1374 |
| Catchwords: INDUSTRIAL LAW – Alleged contraventions of the Fair Work Act 2009 (Cth) – alleged contraventions of the Long Service Leave Act 1955 (NSW) – underpayment of wages – failure to provide written notice of termination – failure to make payment in lieu of notice of termination – failure to pay accrued annual leave – failure to pay annual leave loading – failure to make superannuation contributions – failure to pay long service leave – declarations made. |
| Legislation: Fair Work Act 2009 (Cth), ss.44, 45, 90, 117, 535, 545, 546, 570 Federal Circuit Court of Australia Act 1999 (Cth), s.76 Manufacturing and Associated Industries and Occupations Award 2010, cls.24, 35, 41 |
| Cases cited: Larne-Jones v Human Synergistics Australia Limited & Ors [2016] FCCA 368 |
| Applicant: | CHRISTOPHER EDWARD GRIFFITHS |
| Respondent: | RUDOLPH HANSELMANN |
| File Number: | SYG 2522 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 30 June 2017 |
| Date of Last Submission: | 8 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms L Andleman |
| Solicitors for the Applicant: | Legal Aid NSW |
| Respondent: | In person |
THE COURT DECLARES THAT:
The respondent contravened s.45 of the Fair Work Act 2009 (Cth) by failing to pay the applicant wages pursuant to cl.24.1 of the Manufacturing and Associated Industries and Occupations Award 2010 C14 Engineering/Manufacturing Employee Level I.
The respondent contravened s.45 of the Fair Work Act 2009 (Cth) by failing to make superannuation contributions on behalf of the applicant in the years ending June 2012, 2013 and 2014 pursuant to cl.35 of the Manufacturing and Associated Industries and Occupations Award 2010.
The respondent contravened s.44 of the Fair Work Act 2009 (Cth) by failing to provide the applicant with written notice of termination pursuant to s.117(1) of the Fair Work Act 2009 (Cth).
The respondent contravened s.44 of the Fair Work Act 2009 (Cth) by failing to make a payment in lieu of notice of termination to the applicant pursuant to s.117(3) of the Fair Work Act 2009 (Cth) of five weeks.
The respondent contravened s.44 of the Fair Work Act 2009 (Cth) by failing to pay the applicant accrued annual leave for the period 1 January 2001 to the date of termination, on termination, pursuant to s.90(2) of the Fair Work Act 2009 (Cth).
The respondent contravened s.44 of the Fair Work Act 2009 (Cth) by failing to pay the applicant annual leave loading for the period 1 January 2001 to the date of termination, on termination, pursuant to s.90(2) of the Fair Work Act 2009 (Cth) and cl.41.5 of the Manufacturing and Associated Industries and Occupations Award 2010.
The respondent contravened s.4 of the Long Service Leave Act 1955 (NSW) by failing to pay the applicant long service leave.
THE COURT ORDERS THAT:
Pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth) the respondent pay the applicant the following:
(a)Wages pursuant to cl.24.1 of the Manufacturing and Associated Industries and Occupations Award 2010 as C14 Engineering/Manufacturing Employee Level I.
(b)Superannuation contributions pursuant to cl.35 of the Manufacturing and Associate Industries and Occupations Award 2010 for the years ending June 2012, 2013 and 2014.
(c)A payment in lieu of notice of termination pursuant to s.117(3) of the Fair Work Act 2009 (Cth) of five weeks wages.
(d)Accrued annual leave pursuant to s.90(2) of the Fair Work Act 2009 (Cth).
(e)Annual leave loading pursuant to s.90(2) of the Fair Work Act 2009 (Cth) and cl.41.5 of the Manufacturing and Associated Industries and Occupations Award 2010.
Pursuant to s.12 of the Long Service Leave Act 1955 (NSW) the respondent pay the applicant long service leave.
Pursuant to s.76 of the Federal Circuit Court Act 1999 (Cth), interest from 20 June 2014 (the date of termination of employment) up to the date of judgment on the total sum.
The parties provide written submissions, setting out the relevant calculations with respect to each of the orders.
The applicant must file and serve written submissions on the calculations, as set out in order 4, on or before 8 June 2018.
The respondent to file and serve any written submissions on the calculations, as set out in order 4, on or before 22 June 2018.
The matter of penalties be set down for hearing on a date to be administratively advised to the parties.
The applicant file and serve written submissions on the matter of penalties or before 14 days before the date of the hearing on penalties.
The respondent file and serve written submissions in reply on or before 7 days before the date of the hearing on penalties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2522 of 2016
| CHRISTOPHER EDWARD GRIFFITHS |
Applicant
And
| RUDOLPH HANSELMANN |
Respondent
REASONS FOR JUDGMENT
This is an application made by Mr Griffiths on 16 September 2016 under the Fair Work Act 2009 (Cth) (“the FWA”). Mr Griffiths is seeking declarations that his former employer, Mr Hanselmann, contravened ss.44 and 45 of the FWA and s.4 of the Long Service Leave Act 1955 (NSW) (“the Long Service Leave Act”). Mr Griffiths is also seeking an order pursuant to s.545 of the FWA that Mr Hanselmann pay him an amount for various underpayments, and pecuniary penalties pursuant to s.546 of the FWA and s.10 of the Long Service Leave Act.
Before the Court
This matter has had a long procedural history before the Court.
The matter first came before the Court on 5 October 2016. A solicitor appeared on behalf of Mr Griffiths. There was no appearance by, or on behalf of, Mr Hanselmann. At that time, I granted leave for Mr Griffiths to read the affidavit of “attempted service”, of Clinton James Portors, Licensed Process Server, sworn on 4 October 2016. This revealed that on 20 September 2016, an unsuccessful attempt was made to serve the originating application, and an affidavit of Christopher Edward Griffiths, sworn on 15 September 2016, on Mr Hanselmann at an address in Smithfield, NSW.
At this time, I also granted leave for Mr Griffiths to file the affidavit of Anastasia Polites, Solicitor, affirmed on 5 October 2016, which annexed (at annexure “A”) an Australian Securities and Investments Commission (“ASIC”) search result indicating that Mr Hanselmann was the holder of the business name, “Euromaster Technology Motors”. The ASIC search result also indicated the address for service of documents was PO BOX 21 Rosebery NSW 1445. The matter was listed for further directions on 3 November 2016.
On 3 November 2016, a solicitor again appeared on behalf of Mr Griffiths and there was no appearance by, or on behalf of, Mr Hanselmann. Mr Griffiths had filed an Application in a Case (“AIC”) on 5 October 2016 seeking orders that the requirement for personal service of the originating application and Mr Griffiths’ affidavit sworn on 15 September 2016 be dispensed with, and that service be deemed effected by registered mail to Mr Hanselmann at PO Box [21] Rosebery NSW 1445. The AIC was supported by an affidavit of service (general) of Alexander Yiannikas, Solicitor, affirmed on 5 October 2016, which indicated that the documents had been sent by registered post to PO BOX 21 Rosebery NSW 1445.
Accordingly, I made the orders sought in the AIC and listed the matter for further directions on 14 December 2016. I also ordered that Mr Griffiths write to Mr Hanselmann at the address identified in Mr Yiannikas’ affidavit to notify him of the orders made by the Court.
On 14 December 2016, a solicitor again appeared for Mr Griffiths and there was no appearance by, or on behalf of, Mr Hanselmann. I granted leave for the applicant to read the affidavit of Anastasia Polites, Solicitor, affirmed on 9 December 2016, which stated that on 11 November 2016, the applicant sent a letter to Mr Hanselmann at
PO BOX 21 Rosebery NSW 1445 attaching the orders made by the Court on 3 November 2016.
That letter also indicated to Mr Hanselmann that, pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), Mr Griffiths intended to ask that the matter proceed to a final hearing if Mr Hanselmann failed to attend Court on 14 December 2016. I was satisfied that Mr Griffiths had taken reasonable steps to put Mr Hanselmann on notice of the proceedings and made orders that the matter be set down for final hearing on 8 March 2017.
On 8 March 2017, counsel appeared for Mr Griffiths. Mr Hanselmann did not appear, nor did anyone appear on his behalf. However, Mr Griffiths sought, and was granted, leave to file and read an affidavit of Anastasia Polites, Solicitor, affirmed on 8 March 2017, which stated that Mr Griffiths’ legal representative had been in contact with Mr Hanselmann on the previous day via telephone. During their conversation, Mr Hanselmann indicated that he was unaware of the proceedings against him, and the hearing scheduled for the following day.
Mr Griffiths also handed up a letter from Mr Hanselmann to Mr Griffiths’ solicitor requesting that the matter be adjourned to give him time to seek legal advice (this letter was not formally tendered into evidence). Mr Griffiths advised the Court that he did not intend to oppose the adjournment. However, he sought expedited directions for Mr Hanselmann to file a Response and any evidence on which he intended to rely.
I made orders that Mr Hanselmann file a Response to the application on or before 22 March 2017. Mr Hanselmann did not file a Response. The matter was also set down for further directions on 5 April 2017.
On 5 April 2017, Mr Hanselmann appeared in person. Mr Hanselmann drew the Court’s attention to an apparent administrative error in order 2 of the Court’s orders from 8 March 2017, which mistakenly referred to the “applicant” rather than the “respondent”. In fairness to Mr Hanselmann, and to allow him more time to properly prepare for the final hearing, I made a further order that he file a Response (see order 2 of the Court’s orders of 5 April 2017). I also made orders that the parties file and serve affidavit evidence and written submissions, as well as setting the matter down for final hearing on 30 June 2017.
At the final hearing, Mr Griffiths was represented by counsel. Mr Hanselmann appeared in person.
The following material filed on behalf of Mr Griffiths was read into evidence:
(a)The affidavit of Christopher Edward Griffiths, Disability Pensioner, sworn on 15 September 2016 (no objections);
(b)The affidavit of Christopher Edward Griffiths, Unemployed, sworn on 1 June 2017 (no objections);
(c)The affidavit of Anastasia Polites, Solicitor, affirmed on 4 April 2017 (no objections);
(d)The affidavit of Anastasia Polites, Solicitor, affirmed on 1 June 2017 (no objections);
The applicant also sought, and was granted, leave to tender the following documents:
(a)A copy of the Manufacturing and Associated Industries and Occupations Award 2010, marked for identification (“MFI A1”).
(b)A copy of cl.24 of the Manufacturing and Associated Industries and Occupations Award 2010, containing the relevant classifications and adult minimum wage rates that have been varied on a year to year basis from 1 July 2010 to 1 July 2013, marked for identification (“MFI A2”).
The following material filed on behalf of Mr Hanselmann was read into evidence.
(a)The affidavit of Mr Rudolph Hanselmann, Retired Pensioner, sworn on 8 May 2017. Mr Griffiths objected to the second sentence in [6] on the basis that it contained a conclusion, and was therefore not admissible as evidence. I agreed with Mr Griffiths and struck out the second sentence of [6] of that affidavit. Mr Griffiths also objected to [12] of that affidavit, on the basis that it was an opinion and therefore, not admissible as evidence. Mr Hanselmann agreed. Paragraph [12] was therefore not read into evidence.
Mr Griffiths and Mr Hanselmann both gave oral evidence at the hearing.
Background
At the relevant time, Mr Hanselmann operated a business called “Electromax Electric Motors”. Mr Griffiths contends that he commenced employment with Mr Hanselmann around mid-1997 on a casual basis and was later moved to a permanent, full-time position.
For the sake of completeness, I note that on the affidavit evidence before the Court, the relevant employer of Mr Griffiths is variously described as “the respondent” (see Mr Griffiths’ affidavit of 15 September 2016 at [1]), “Electromax Pty Ltd” (see documents annexed to Mr Griffiths’ affidavit of 15 September 2016 at annexure “CG1”), and “Hanselmann trading as Electromax” (see documents annexed to Mr Griffiths’ affidavit of 15 September 2016 at annexure “CG2”). However, before the Court, it was never disputed by Mr Hanselmann that he was the relevant employer of Mr Griffiths.
Mr Griffiths’ contends that his last day at work was on 30 May 2014, after which he was directed by Mr Hanselmann to take a week of leave due to the business closing down (Mr Griffiths’ affidavit of 15 September 2016 at [1] – [2] but see Mr Hanselmann’s affidavit of 8 May 2017 at [1]). In the period of 30 May 2014 until 20 June 2014, Mr Hanselmann paid Mr Griffiths an amount in cash, but did not provide him with any payslips. Mr Griffiths contends his employment was then terminated on 20 June 2014.
Mr Griffiths stated that his duties included “assembling machines, assembling products, cleaning, pickup and delivery of products, communicating with clients and suppliers”. He contends that his employment classification is commensurate with a “Process Worker” as set out in the Manufacturing and Associated Industries and Occupations Award 2010 (“the Award”) as “C13 Engineering/Manufacturing Employee Level II” (see ground two of the application to the Court and also further below). Mr Hanselmann agreed that the Award is the relevant modern award that applied to his business and to Mr Griffiths’ employment.
The Application to the Court
Through his application to the Court, Mr Griffiths seeks declarations that Mr Hanselmann has contravened:
(a)Section 45 of the FWA by failing to pay wages pursuant to the as a C13 Engineering/Manufacturing Employee Level II (in the amount of $9740.15).
(b)Section 44 of the FWA by failing to pay notice of termination pursuant to s.117 of the FWA of five weeks (in the amount of $3201.50).
(c)Section 44 of the FWA by failing to provide the applicant with written notice of termination pursuant to s.117 of the FWA.
(d)Section 44 of the FWA by failing to pay accrued annual leave on termination pursuant to s.90 of the FWA (in the amount of $36,240.98).
(e)Section 44 of the FWA by failing to pay annual leave loading pursuant to s.90 of the FWA (in the amount of $6,342.17)
(f)Section 45 of the FWA by failing to pay superannuation contributions pursuant to cl.35 of the Award.
(g)Section 4 of the Long Service Leave Act by failing to pay long service leave (in the amount of $9,220.32).
Mr Griffiths also seeks in his application:
(a)An order that Mr Hanselmann pay him the amounts set out in [22] above.
(b)Pecuniary penalties pursuant to s.546 of the FWA for the contraventions of ss.44 and 45 of the FWA.
(c)A pecuniary penalty pursuant to s.10 of the Long Service Leave Act.
(d)Interest.
At the final hearing, Mr Griffiths handed up a document setting out specifically, the proposed orders and declarations sought by him as follows:
“PROPOSED ORDERS
The Court finds that the respondent contravened:
(1) Section 45 of the Fair Work Act 2009 (Cth) by failing to pay wages pursuant to cl.24.1 of the Manufacturing and Associated Industries and Occupations Award 2010 (Modern Award) as C13 Engineering/Manufacturing Employee Level II.
(2) Section 45 of the Fair Work Act 2009 (Cth) by failing to make superannuation contributions pursuant to clause 35 pursuant [to] the Modern Award.
(3) Section 44 of the Fair Work Act by failing to pay notice of termination pursuant to section 117(3) of the Fair Work Act 2009 (Cth) of five weeks.
(4) Section 44 of the Fair Work 2009 (Cth) by failing to provide the applicant with written notice of termination pursuant to section 117(1) of the Fair Work 2009 (Cth).
(5) Section 44 of the Fair Work 2009 (Cth) by failing to pay accrued annual leave on termination pursuant to section 90(2) of the Fair Work Act 2009 (Cth) FW Act.
(6) Section 44 of the Fair Work Act 2009 (Cth) by failing to pay annual leave loading pursuant to section 90(2) of the Fair Work Act 2009 (Cth).
(7) Section 4 Long Service Leave Act 1955 (NSW) by failing to pay long service leave. (the contraventions).
ORDERS
(1) Pursuant to section 545(2)(b) of the Fair Work Act 2009 (Cth) the respondent pay the applicant the following sums for the contraventions referred to above:
a. failing to pay wages pursuant to clause 24.1 of the Manufacturing and Associated Industries and Occupations Award 2010 (Modern Award) as C13 Engineering/Manufacturing Employee Level 1 in the sum of $9 740.15.
b. failing to make superannuation contributions pursuant to clause 35 of the Modern Award in the sum of $11 694.86
c. failing to pay notice of termination pursuant to section 117 of the FW Act of five weeks in the sum of $3 201.50
d. failing to pay accrued annual leave on termination pursuant to section 90 of the FW Act in the sum of
$6 050.83.
(2) The payments of the sums in paragraphs 1 are to be paid within twenty-eight (28) days of these Orders.
(3) Pursuant to section 546(1) and 546(3)(c) of the Fair Work Act 2009 (Cth) the respondent pay a pecuniary penalty in the sum of $ for its contraventions to the applicant within twenty-eight (28) days of these Orders.
(4) Pursuant to section 12 of the Long Service Leave Act 1955 (NSW) the respondent pay the applicant the sum of $9 220.32 within twenty-eight (28) days of these Orders.
(5) Pursuant to section 76 of the Federal Circuit Court Act 1999 (Cth), interest from 20 June 2014 (date of termination of employment) up to judgement on the sum of $74 483.86 in the amount of $13 647.13.
(6) The matter be stood over generally with liberty to the parties to apply for any further relief.
(7) Costs thrown away pursuant to section 570(2)(b) of the Fair Work Act 2009 (Cth) for the respondent’s unreasonable conduct on 8 March 2017.”
[Errors in original.]
I note that Mr Griffiths did not press the final order (7) in relation to costs thrown away pursuant to s.570 of the FWA. I also note that Mr Griffiths indicated that proposed order (1)(a) (at [24] above) was in error. The reference there should be to “Level II” and not “Level I”.
Consideration
I note the following preliminary matters by way of background to what follows.
First, it was clear from the documents filed by Mr Hanselmann in these proceedings, that he had a limited understanding of the legal basis for the matters raised against him by Mr Griffiths’ application to the Court.
I do not say this as any criticism of him. It is to be expected that as a layperson, Mr Hanselmann’s knowledge of the law would be limited. For this reason, at the commencement of the hearing, I pressed Mr Hanselmann as to whether he had sought, or was contemplating obtaining, legal advice.
In particular, if Mr Hanselmann had indicated some willingness to obtain legal advice, then in the circumstances, and in light of the procedural background set out above, this would have been an element in granting an adjournment (if such an application were to have been made).
Mr Hanselmann stated that he did not want to spend money on legal advice and did not want to direct funds away from his family. He did not seek any adjournment to seek legal advice, or for any other purpose. While he stated that he had only been put on notice of these proceedings on 4 May 2017, he was ready to proceed.
Second, during his cross-examination of Mr Griffiths, Mr Hanselmann focused his questions on the matter of “payslips”. It became apparent that Mr Hanselmann had understood Mr Griffiths’ legal representatives to have asserted that Mr Hanselmann had not provided any payslips to Mr Griffiths during his employment. Through his questioning, he sought to reveal a contradiction between this alleged assertion and the fact that Mr Griffiths had annexed some payslips to his affidavit of 15 September 2016.
The background to this line of questioning appears to be as follows. By letter of 3 May 2017, Mr Hanselmann wrote to Mr Griffiths’ solicitor, requesting copies of Mr Griffiths’ payslips from 30 June 1997 to 4 August 2013 (see Ms Polites’ affidavit of 1 June 2017 at annexure “A”).
Mr Griffiths’ solicitor responded. She noted that pursuant to s.535 of the FWA, an employer was required to keep, amongst other things, employment records, including payslips, for seven years. Mr Hanselmann was also referred to s.546 of the FWA (relevant pecuniary penalties for failing to do so) (see Ms Polites’ affidavit of 1 June 2017 at annexure “B”).
It is important to note that Mr Griffiths’ application to the Court does not seek orders involving any such failure by Mr Hanselmann. Nor did this subsequently become a part of Mr Griffiths’ case in these proceedings.
In Mr Griffiths’ affidavit of 15 September 2016, he gave evidence regarding payslips and annexed some of the payslips he was given “over the years” (see Mr Griffiths’ affidavit of 15 September 2016 at [7] and annexure “CG1”).
Plainly, it is not appropriate for this Court to speculate on matters beyond the scope of the application actually made by Mr Griffiths. If this matter is of interest to any relevant authority, that is a matter for that authority, and for another day.
What this emphasises however, is the poorly prepared and presented response by Mr Hanselmann to Mr Griffiths’ case (of which, unlike Mr Hanselmann, was prepared with legal assistance).
Third, it was also clear from Mr Hanselmann’s cross-examination of Mr Griffiths that he failed to understand the specifics of the matters put against him, and the consequent scope of these proceedings.
For example, Mr Hanselmann pressed Mr Griffiths about when Mr Griffiths had made a complaint to the Fair Work Ombudsman (“the FWO”), and the reasons for doing so. In response to objections from Mr Griffiths’ counsel, Mr Hanselmann sought to explain the relevance by asserting that the FWO “found nothing wrong” and “the case was closed”.
No evidence had been led by Mr Hanselmann about any complaint to the FWO. Mr Griffiths made a brief reference in his affidavit of 15 September 2016 to having made a complaint to the FWO (see [6] of that affidavit). In any event, as I sought to explain to Mr Hanselmann, it was for the Court to decide on the matters raised by Mr Griffiths’ application, not, with respect, the FWO.
Fourth, it must be said that the presentation of Mr Hanselmann’s arguments before the Court, and the evidence said to be relied upon by him, illustrates the difficulties faced by an unrepresented respondent when asked to respond to a case prepared by an applicant’s legal representatives.
As set out above, Mr Hanselmann did not participate in these proceedings for some time while this application was before the Court. The circumstances leading to the setting down of this matter for final hearing are as set out above.
For this reason, and as also set out above, at the final hearing of this matter, I sought to confirm with Mr Hanselmann whether he was ready to proceed. He stated that he was. He had thought about obtaining legal advice but was unable to afford it.
As also noted above, I sought to provide Mr Hanselmann with every opportunity to present his evidence and arguments in reply. In relation to one issue (Mr Griffiths’ calculations and proposed orders), I gave the parties the opportunity to make further written submissions after the final hearing had concluded. I note that the time given was substantial (approximately two months). Mr Hanselmann filed written submissions on 31 August 2017. Mr Griffiths filed further written submissions on 8 September 2017.
Ultimately, it is trite to say that having given each party a fair opportunity, in the circumstances, the Court can only proceed on the evidence and arguments put before it by the parties.
The application before the Court raised seven matters where Mr Hanselmann is said to have breached various sections of the FWA and the Long Service Leave Act in relation to Mr Griffiths.
For current purposes, the following legislation is relevant.
Section 44 of the FWA provides:
“44 Contravening the National Employment Standards
(1) An employer must not contravene a provision of the National Employment Standards.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) However, an order cannot be made under Division 2 of Part 4‑1 in relation to a contravention (or alleged contravention) of subsection 65(5) or 76(4).
Note 1: Subsections 65(5) and 76(4) state that an employer may refuse a request for flexible working arrangements, or an application to extend unpaid parental leave, only on reasonable business grounds.
Note 2: Modern awards and enterprise agreements include terms about settling disputes in relation to the National Employment Standards (other than disputes as to whether an employer had reasonable business grounds under subsection 65(5) or 76(4)).”
Section 45 of the FWA provides:
“45 Contravening a modern award
A person must not contravene a term of a modern award.
Note 1: This section is a civil remedy provision (see Part 4‑1).
Note 2: A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).”
The relevant parts of s.4 of the Long Service Leave Act provide:
“4 Long service leave
(1) Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer. Service with the employer before the commencement of this Act as well as service with the employer after such commencement shall be taken into account for the purposes of this section.
(2)
(a) Subject to paragraph (a2) and subsection (13) the amount of long service leave to which a worker shall be so entitled shall:
(i) in the case of a worker who has completed at least 10 years service with an employer be:
(A) in respect of 10 years service so completed, 2 months, and
(B) in respect of each 5 years service with the employer completed since the worker last became entitled to long service leave, 1 month, and
(C) on the termination of the worker’s services after the completion of 15 years service, in respect of the number of years service with the employer completed since the worker last became entitled to an amount of long service leave, a proportionate amount on the basis of 2 months for 10 years service, and
(ii) in the case of a worker who has completed at least 10 years service but less than 15 years with an employer and whose services with the employer are terminated or cease for any reason, be a proportionate amount on the basis of 3 months for 15 years service, and
(iii) in the case of a worker who has completed with an employer at least five years service, and whose services are terminated by the employer for any reason other than the worker’s serious and wilful misconduct, or by the worker on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker, be a proportionate amount on the basis of 2 months for 10 years service.
…
(5)
(a) Where the services of a worker are terminated otherwise than by the worker’s death and any long service leave:
(i) to which the worker was entitled has not been taken, or
(ii) accrues to the worker upon such termination and has not been taken,
the worker shall, subject to subsection (13), be deemed to have entered upon the leave from the date of such termination and the employer shall forthwith pay to the worker in full the worker’s ordinary pay for the leave less any amount already paid to the worker in respect of that leave…”
First, Mr Griffiths alleges that Mr Hanselmann contravened s.45 of the FWA because he failed to pay Mr Griffiths certain wages pursuant to cl.24.1 of the Award.
Mr Griffiths submitted that his employment conditions were subject to the Award. There does not appear to be any dispute between the parties in this regard.
However, Mr Griffiths submitted that his “proper classification” under the Award was as a “Level II, C13 Engineering/Manufacturing Employee” (“C13”). He refers to cl.24.1 of the Award (see MFI A1 at pages 40 – 43 and page 100).
Mr Hanselmann disputed this. His submission was that the relevant “correct classification” is “Level I – C14 Engineering/Manufacturing Employee” (“C14”) (see MFI A1 at page 99-100).
Schedule B to the Award sets out the classification structure under the Award and relevant definitions. Both C13 and C14 appear under the heading of “Wage Group C13” and “Wage Group C14” respectively.
Wage Group C14 is as follows (B.3.3 of Schedule B to the Award):
“(a) Engineering/Manufacturing Employee – Level 1
(i) An Engineering/Manufacturing Employee – Level 1 is an employee who is undertaking up to 38 hours induction training which may include information on the enterprise, conditions of employment, introduction to supervisors and fellow workers, training and career path opportunities, plant layout, work and documentation procedures, occupational health and safety, equal employment opportunity and quality control/assurance.
(ii) An employee at this level performs routine duties essentially of a manual nature and to the level of their training:
- performs general labouring and cleaning duties;
- exercises minimal judgement;
- works under direct supervision;
- is undertaking structured training so as to enable them to work at the C13 level.”
Wage group C13 is as follows (B.3.4 of Schedule B to the Award):
“(a) Engineering/Manufacturing Employee – Level II
(i) An Engineering/Manufacturing Employee – Level II is an employee who has completed up to three months structured training so as to enable the employee to perform work within the scope of this level.
(ii) An employee at this level performs work above and beyond the skills of an employee at the C14 level and to the level of their skills, competence and training:
- works in accordance with standard operating procedures and established criteria;
- works under direct supervision either individually or in a team environment;
- understands and undertakes basic quality control/assurance procedures including the ability to recognise basic quality deviations/faults;
- understands and utilises basic statistical process control procedures;
- follows safe work practices and can report workplace hazards.”
In essence, Mr Hanselmann submits that C13 “never” applied to Mr Griffiths because he had “never been able to work to operating procedures”, could not “read the required measuring instruments or technical drawings”, had “no ability” to “understan[d] and utilis[e] basic statistical process control procedures”, always needed “close supervision” with regards to following “safe work practices” and “report[ing] workplace hazards” (see Mr Hanselmann’s written submissions at pages 1 – 2).
Mr Hanselmann submitted that these skills were all requirements of C13, and Mr Griffiths’ lack of ability in this regard meant that C14 was the “correct” classification.
The relevant respective evidence of the parties is as follows.
Mr Griffiths gave evidence that he “[o]ften” worked without supervision and “[s]ome” of his duties included “setting up equipment and machinery, cleaning and dealing with clients and suppliers” (Mr Griffiths’ affidavit of 15 September 2016 at [8] – [9]).
Mr Hanselmann’s evidence, as opposed to his submissions, was that Mr Griffiths was “unable to work independently and without supervision” and was “restricted to particular jobs” because of “safety concerns”. Further, that Mr Griffiths was “not allowed to negotiate with customers or suppliers” (Mr Hanselmann’s affidavit of 8 May 2017 at [8] – [9].
In direct response, Mr Griffiths’ evidence was that he “did work independently” and “set machines and set the power presses” by himself. He also gave directions to “casuals or other staff” in this regard (Mr Griffiths’ affidavit of 1 June 2017 at [2]c.). In relation to dealing with customers, Mr Griffiths’ evidence was that he was often asked to “pick up” equipment from a particular supplier. Further, he was responsible for “dealing with customers and suppliers” when Mr Hanselmann was not at work (Mr Griffiths’ affidavit of 1 June 2017 at [2]d.). There were also “long periods” “during the day” when Mr Hanselmann was not at the work premises and Mr Griffiths was by himself (Mr Griffiths’ affidavit of 1 June 2017 at [2]c.).
I note that in his own evidence, Mr Griffiths stated that he has been diagnosed with a “learning disorder”, which would indicate support for Mr Hanselmann’s submission that Mr Griffiths had no, or limited, capacity to understand the tasks relevant to a C13 (classification) (Mr Griffiths’ affidavit of 15 September 2016 at [13]).
While Mr Hanselmann cross-examined Mr Griffiths over a large number of matters, only the following can be said to be relevant to the matter of the appropriate classification level.
Mr Griffiths was permanently (as opposed to casually) employed by Mr Hanselmann for “about 14 years”. He “set up” power presses, but did not “put tools” in the machines.
In relation to dealing with clients, Mr Griffiths’ evidence under
cross-examination was that under direction, he would perform routine tasks. For example, he would go and “pick up” cheques or take the name and number of customers (later, in re-examination a reference was made to “clients”) who wanted a motor repaired.
In cross-examination, Mr Hanselmann was asked, and confirmed, that there was a “basic entitlement” of an employee, for their employer to pay “a minimum rate of pay set out in the award”.
It is important to note that no questions were asked of him on the issue in dispute now, which is the “correct classification” of Mr Griffiths under the relevant Award. I note that the matter of the “correct” modern award was never at issue.
Mr Griffiths’ submissions to the Court in relation to the matter of the applicable “correct” classification under the Award, and the relevant rate of pay, were essentially as follows.
Mr Griffiths says that the “correct” classification under the Award, that is, the classification that applied to him such as to determine the appropriate rate of pay, was C13.
Mr Griffiths submitted that C14 was appropriate to an employee “who undertakes up to 38 hours of induction training”. Further, that C13 is appropriate for an employee who works in accordance with “standard operating procedures” (not defined in the Award), under “direct supervision” and “understands and undertakes basic quality control”.
Mr Griffiths is correct to say that C14 relates to an employee who is undertaking certain induction training. That reasonably arises from what is set out at “B.3.3” of Schedule B to the Award (MFI A1 at page 103).
It is also the case that on the evidence, Mr Griffiths, essentially, worked under direct supervision.
However, to the extent that Mr Griffiths’ argument depends on the assertion that C13 applies because C14 only applies to those undertaking induction training, that submission does not assist Mr Griffiths.
Even if Mr Griffiths was not undertaking induction training, this does not automatically mean he can be assumed to meet the C13 requirements.
It is trite to say that the Court can only proceed on the evidence put before it. I pause here to note, again, that Mr Griffiths was legally represented.
With reference to C14, there was no evidence before the Court as to any “induction training” ever having been undertaken by Mr Griffiths, such as to then say he had moved beyond this classification “level” to C13.
Conversely, with reference to C13, there was no evidence put by Mr Griffiths before the Court that he had ever “completed up to three months structured training so as to enable [him] to perform work within the scope of this level” (as required by B.3.4. (Wage group C13(a)(i)) of Schedule B to the Award).
Further, there was no evidence on which it could reasonably be inferred that Mr Griffiths worked “above and beyond the skills of an employee at the C14 level and to the level of their skills, competence and training” (as required by B.3.4 (Wage Group C13(a)(ii)) of Schedule B to the Award).
Nor was any evidence lead by Mr Griffiths as to what is required by B.3.4 Wage Group C13(a)(ii)(dot points 1,3,4 and 5) of Schedule B to the Award, such that a reasonable inference, or finding, could be made that he worked to these levels, or met the relevant requirements.
It is not for Mr Hanselmann to make out Mr Griffiths’ factual assertion in this regard. That falls to him as an applicant who proposes the appropriate, or “correct” classification to determine the relevant rate of pay. [I pause to note that’s.361 of the FWA is not engaged at this point.] The assertion that C13 is appropriate because in essence, C14 was not, is not sufficient to overcome the deficiencies in Mr Griffiths’ evidence as presented.
As set out above, it was Mr Griffiths’ evidence that he was diagnosed as having a “learning disorder”. Mr Griffiths asserted in his evidence that he thought “Mr Hanselmann saw [him] as weak and took advantage of [his] kindness” (Mr Griffith’s affidavit of 15 September 2016 at [13]). Regrettably, that may be the case.
However, it may equally be the case that Mr Hanselmann employed, for over 14 years, an employee who had a learning disorder, and took steps such as close supervision and limited allocation of tasks, to accommodate Mr Griffiths’ lack of capacity to acquire a higher level of skills. This, of course, is no justification for the failure to provide Mr Griffiths with any of his entitlements under the law.
Whatever the case, what remains is as follows. On the evidence, Mr Griffiths has not satisfied the Court that he was able to, or did, perform work within the scope required of an employee at the C13 level.
Mr Griffiths’ contention that underpins his first complaint is not made out. It is not appropriate to make order 1(a) as he seeks (see [24] above). This applies also to Mr Griffiths claims in relation to Mr Hanselmann’s failure to make superannuation contributions.
The issue of the “correct” classification under the Award is also of relevance to the other orders sought by Mr Griffiths. In essence, much of what follows involves either no payment (with regard to payment in lieu of notice of termination, annual leave loading, accrued annual leave and long service leave), or underpayment (with regard to wages).
The calculations of the exact amounts that variously should have been paid, and were not, were dependent on whether Mr Griffiths was employed at the C14 or C13 level. I note that Mr Griffiths requested that if the Court were to find that the “correct” classification under the Award was C14, he be given the opportunity to recalculate the amounts.
As set out above, Mr Griffiths has not shown, on the evidence, that he worked at, or was employed at, the C13 level. There are, at the same time, some difficulties in saying that he was employed at the C14 level. For example, the reference to the required “induction training”.
Neither of the parties proposed that Mr Griffiths was employed at any other level under the Award, or indeed under any other modern award. The dispute between the parties was that it was either level C13 or level C14. I cannot find, on the evidence, that Mr Griffiths was employed at the C13 level. Despite some difficulties, I find that for current purposes, he was employed at the C14 level.
There was also a dispute between the parties as to whether Mr Griffiths was employed as a permanent, or casual, employee.
Mr Griffiths’ evidence was that his employment began at some time in mid-1997. At that time, he was engaged as a casual employee. However, it was also his evidence that soon thereafter, he was employed on a permanent basis.
Mr Griffiths’ evidence was that since at least (in context) sometime in the latter part of 1997, he worked on a full-time basis and worked what was described as “regular” hours. Before the Court, his evidence was also that he was casual “for a few years”, but was permanent for “about 14 years”. This is consistent with his payslips for later years [with reference to what is shown on the payslips as his base number of hours] (see Mr Griffiths’ affidavit of 15 September 2016 at “CG1”).
It is important to note in light of Mr Griffiths’ evidence from his first affidavit filed in these proceedings (on 15 September 2016), that Mr Hanselmann made no reference to Mr Griffiths’ “casual employment” until he raised it in his cross-examination of Mr Griffiths.
I accept Mr Griffiths’ evidence as it was “explained” in
cross-examination. Mr Hanselmann was unable to satisfactorily explain, either with reference to his own evidence, or that of Mr Griffiths’, the basis for submitting that Mr Griffiths was never a permanent employee, or that he was a casual employee for some period after the first “few years”.
I accept that Mr Griffiths was a full time, permanent, employee from some time in the year 2000. The difficulty for current calculations is that his evidence does not provide any detail as to when in the year 2000 his conversion from a casual to permanent employee could be said to have occurred. [The payslips provided only cover 2013 and 2014.] Therefore, for current purposes, I find that he was a full-time permanent employee from 1 January 2001. For current purposes, he should have been paid at the C14 level of the Award since that date to the date of termination.
Second, Mr Griffiths asserts that Mr Hanselmann breached s.45 of the FWA. This is because he failed to make superannuation contributions pursuant to cl.35 of the Award in the appropriate amount.
Clause 35 of the Award requires an employer to make superannuation contributions to a superannuation fund for the benefit of an employee.
I note as a preliminary point, that Mr Griffiths has not been consistent in his assertions as to whether he was paid any superannuation. In his application to the Court he states that he was “not paid” superannuation, but also that he was paid “some superannuation”. At the final hearing, Mr Griffiths submitted that he was not paid any superannuation.
Mr Griffiths’ submissions on this point were brief. These were to refer to the relevant calculations set out at [15] of the Ms Polites’ affidavit of 4 April 2017. These calculations relate to the financial years ending June 2011, 2012, 2013 and 2014.
Mr Griffiths’ submission was that Mr Hanselmann did not pay him his superannuation entitlements. His evidence in his affidavit of 15 September 2016 (at [5]) was that he had asked Mr Hanselmann on a number of occasions from June 2014 to pay him his superannuation entitlements. A reasonable inference may be drawn from this evidence, that he made such requests because he had not been paid any superannuation.
Mr Griffiths has provided evidence of Pay As You Go (“PAYG”) payment summaries covering some of his period of employment (see Mr Griffiths’ affidavit of 15 September 2016 at [7] and annexure “CG2”). Relevantly (and with reference to the calculations in Ms Polites’ affidavit of 4 April 2017), these PAYG payment summaries are for the financial years ending (in order in which they are annexed to his affidavit) June 2014, 2013 and 2012. There is no statement for the year ending June 2011. While there is a blank page [absent writing] annexed to the affidavit, I am unable to find that he has provided evidence of the statement for the year ending June 2011. While on the evidence, there are statements relevant to other financial years, on the issue of superannuation, the calculations provided by Mr Griffiths only related to 2011, 2012, 2013 and 2014.
The documents for the years ending June 2012, 2013 and 2014 reveal that there is no record of any reportable employer’s superannuation contributions having been made for those years.
Mr Griffith’s evidence here is relatively clear. He asserts Mr Hanselmann made no such payments. Mr Hanselmann’s evidence under cross-examination was, as Mr Griffiths’ counsel described it, “disingenuous”.
When put to Mr Hanselmann in cross examination that he had not made any such payments, he asserted that he had. When asked why he did not provide any evidence to support his claim, his response was that he was not “asked for it”.
It is the case that given that Mr Griffiths had produced evidence by way of the PAYG payment summaries that indicated whether superannuation payments had been made (at least for the years 2012, 2013 and 2014), then Mr Hanselmann would have been on reasonable notice as to what was being put against him in relation to the issue of superannuation payments, and the evidence on which Mr Griffiths’ relied.
When pressed during cross-examination, Mr Hanselmann was equivocal. He said that he made superannuation contributions for all his employees and did not know, and could not remember, the specific situation concerning Mr Griffiths.
Importantly, even though Mr Hanselmann made written submissions after the hearing, there is no reference to the superannuation issue in the submissions.
On the evidence before the Court, and for the purpose of the superannuation contributions, I find that Mr Hanselmann did not make any superannuation contribution payments in relation to Mr Griffiths for the years ending June 2012, 2013 and 2014.
On the evidence, I find that the relevant hourly rates (as from C14 in the Award), are as follows (see also MFI A2):
(a)For the year ending June 2012, $15.51 per hour.
(b)For the year ending June 2013, $15.96 per hour.
(c)For the year ending June 2014, $16.37 per hour.
Third, Mr Griffiths asserted that Mr Hanselmann failed to pay the appropriate amount of payment in lieu of notice of termination for the relevant period of five weeks.
This issue was not addressed in oral or written submissions by Mr Griffiths in any detail. At best, regard must be had to other documents before the Court.
In his application, Mr Griffiths asserts that he was not provided with written notice of termination of employment when his employment ceased on 20 June 2014. Nor was he paid the relevant amount in lieu of that notice pursuant to s.117 of the FWA.
Section 117 of the FWA states:
“117 Requirement for notice of termination or payment in lieu
Notice specifying day of termination
(1) An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Note 1: Section 123 describes situations in which this section does not apply.
Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee’s last known address; or
(c) sending it by pre‑paid post to the employee’s last known address.
Amount of notice or payment in lieu of notice
(2) The employer must not terminate the employee’s employment unless:
(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or
(b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
(3) Work out the minimum period of notice as follows:
(a) first, work out the period using the following table:
Period
Employee’s period of continuous service with the employer at the end of the day notice is given
Period
1
Not more than one year
1 week
2
More than 1 year but not more than 3 years
2 weeks
3
More than 3 years but not more than 5 years
3 weeks
4
More than 5 years
4 weeks
(b) then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.”
The relevant evidence before the Court, not now in dispute, is that Mr Griffiths’ employment with Mr Hanselmann was terminated on 20 June 2014, and he was over the age of 45 at that time.
Mr Griffiths’ evidence was that he did not receive notice of termination in writing, nor any payment in lieu of notice (see Mr Griffiths’ affidavit of 15 September 2016 at [12] and s.117 of the FWA).
Mr Hanselmann’s evidence is that Mr Griffiths’ last day at work was 30 May 2014. Mr Griffiths was “thereafter” given “his termination payment” (Mr Hanselmann’s affidavit of 8 May 2017 at [1]). It was put to him during cross-examination that that payment had not been made.
Mr Hanselmann’s evidence on this point during cross-examination was, it must be said, equivocal, and lacked a satisfactory explanation of relevant events.
Mr Griffiths’ evidence was that Mr Hanselmann told him on 30 May 2014 to “take a week leave as the business was closing down” (Mr Griffiths’ affidavit of 15 September 2016 at [2]). It was put to Mr Hanselmann that, in that context, the relevant payslips showed that what was paid to Mr Griffiths at that time was annual leave, not payment in lieu of notice of termination.
Mr Hanselmann agreed with this and then immediately stated, “well termination pay was what was owed”.
Mr Hanselmann’s written submissions after the hearing made no reference to the matter of payment in lieu of notice of termination.
On the evidence, I find that Mr Hanselmann did not give Mr Griffiths written notice of termination as required by s.117 of the FWA. Further, he did not pay Mr Griffiths any payment in lieu of that notice. In the circumstances, that payment should have been consistent with the minimum period of five weeks’ notice of termination. That is, Mr Hanselmann should have paid Mr Griffiths five weeks pay in lieu of notice of termination. He did not do so.
Fourth, Mr Griffiths asserts that Mr Hanselmann failed to pay him accrued annual leave on termination pursuant to s.90(2) of the FWA.
Section 90(2) of the FWA is in the following terms:
“90 Payment for annual leave
…
(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.”
Mr Griffiths also asserted that he was not paid annual leave loading pursuant to s.90(2) of the FWA and cl.41.5 of the Award. Clause 41.5 of the Award is as follows:
“41.5 Annual leave loading
(a) During a period of annual leave an employee must also be paid a loading calculated on the wages prescribed in clause 41.4.
(b) The loading must be as follows:
(i) Day work
An employee who would have worked on day work only had they not been on leave must be paid a loading equal to 17.5% of the wages prescribed in clause 41.4 or the relevant weekend penalty rates, whichever is the greater but not both.
(ii) Shiftwork
An employee who would have worked on shiftwork had they not been on leave must be paid a loading equal to 17.5% of the wages prescribed in clause 41.4 or the shift loading including relevant weekend penalty rates, whichever is the greater but not both.”
Mr Hanselmann denies that Mr Griffiths was ever a full-time employee. Therefore, he asserts that Mr Griffiths was not entitled to annual leave and annual leave loading, because he was a “casual”.
For the reasons set out above, I find in accepting Mr Griffiths’ evidence, that he was a full-time employee since the year 2000 (that is from 1 January 2001). In the period from mid-1997 to “sometime” in the year 2000, he was a casual employee.
On the evidence, Mr Hanselmann did not pay Mr Griffiths his entitlement to annual leave, or annual leave loading, on termination of his employment. Mr Griffiths is entitled to such payments to be calculated at the casual rate for the period mid-1997 (1 June) to the end of the year 2000, and then as a full-time employee from the 1 January 2001 to the date of termination. Such calculation should be made at the C14 level.
Fifth, Mr Griffiths asserts that Mr Hanselmann did not pay him long service leave. Section 4(11)(a) of the Long Service Leave Act is in the following terms:
“4 Long Service Leave
(11) For the purposes of this section:
(a) service of a worker with an employer means continuous service, whether on a permanent, casual, part-time or any other basis, under one or more contracts of employment.”
Relevantly, s.12 of the Long Service Leave Act provides the following:
“12 Recovery of long service leave pay
(1) Any worker may apply to the Local Court, or to the Supreme Court, for an order directing the employer to pay to the worker the full amount of any payment which has become due to the worker under this Act at any time during the period of 6 years immediately preceding the date of the application but not earlier than 2 years before the date of assent to the Long Service Leave (Amendment) Act 1980.
The Local Court or Supreme Court may make any order it thinks just in the matter and may award costs to either party, and assess the amount of such costs.
(2) In any case where the worker is a person employed to do any work for which the price or rate has been fixed by an award or agreement, proceedings under this section may, with the consent in writing of the worker, be taken by the secretary or other officer of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 concerned in the industry to which the award or agreement relates, in the name and on behalf of the worker.
Any amount ordered to be paid in proceedings under this subsection may be paid to the secretary or other officer and the receipt of the secretary or other officer shall be a sufficient charge to the employer for the amount mentioned in the receipt.
Any amount so paid to the secretary or other officer (less any costs properly incurred in connection with the proceedings and not paid by the employer) shall be held by the secretary or other officer on trust for the worker on whose behalf the proceedings were taken.”
I note that the Court has jurisdiction to consider the matter of long service leave (see Larne-Jones v Human Synergistics Australia Limited & Ors [2016] FCCA 368 per Judge Barnes at [53] - [57] with which I respectfully agree).
As set out above, Mr Griffiths was employed by Mr Hanselmann from mid-1997 to 20 June 2014. In his written submissions, Mr Hanselmann asserted that Mr Griffiths was not entitled to long service leave because his service was “not continuous” ([1] of Mr Hanselmanm’s written submissions). He provided no evidence to support this submission. In the circumstances, there is no reason not to accept Mr Griffiths’ evidence in this regard. On the evidence, Mr Griffiths was entitled to long service leave. He was not paid this entitlement on termination pursuant to s.4(5)(a)(ii) of the Long Service Leave Act. Further, there is no evidence that Mr Griffiths took any long service leave.
Conclusion
In light of the findings set out above, Mr Griffiths is entitled to:
(a)Wages at the C14 level for the period 1 January 2001 to the date of termination.
(b)Superannuation contributions for the years ending June 2012, 2013 and 2014.
(c)Payment in lieu of notice of termination
(d)Accrued annual leave for the period 1 January 2001 to the date of termination.
(e)Annual leave for the period 1 January 2001 to the date of termination.
(f)Long service leave for the duration of his employment.
(g)Interest up to the date of this judgment.
In submissions, Mr Griffiths proposed that if the Court could not accept all of his submissions, but accepted some of them, he would need to recalculate the specific amount sought under each order. In light of the findings made in this judgment, it is appropriate to give Mr Griffiths that opportunity. Mr Hanselmann will also be given the opportunity to make submissions in reply on the matter of each calculation. I will make an appropriate order.
I will also make the following declarations:
The Court finds that the respondent contravened:
(1) Section 45 of the Fair Work Act 2009 (Cth) by failing to pay the applicant wages pursuant to cl.24.1 of the Manufacturing and Associated Industries and Occupations Award 2010 C14 Engineering/Manufacturing Employee Level I.
(2) Section 45 of the Fair Work Act 2009 (Cth) by failing to make superannuation contributions on behalf of the applicant in the years ending June 2012, 2013 and 2014 pursuant to cl.35 of the Manufacturing and Associated Industries and Occupations Award 2010.
(3) Section 44 of the Fair Work Act 2009 (Cth) by failing to provide the applicant with written notice of termination pursuant to s.117(1) of the Fair Work Act 2009 (Cth).
(4) Section 44 of the Fair Work Act 2009 (Cth) by failing to make a payment in lieu of notice of termination to the applicant pursuant to s.117(3) of the Fair Work Act 2009 (Cth) of five weeks.
(5) Section 44 of the Fair Work Act 2009 (Cth) by failing to pay the applicant accrued annual leave for the period 1 January 2001 to the date of termination, on termination, pursuant to s.90(2) of the Fair Work Act 2009 (Cth).
(6) Section 44 of the Fair Work Act 2009 (Cth) by failing to pay the applicant annual leave loading for the period 1 January 2001 to the date of termination, on termination, pursuant to s.90(2) of the Fair Work Act 2009 (Cth) and cl.41.5 of the Manufacturing and Associated Industries and Occupations Award 2010.
(7) Section 4 of the Long Service Leave Act 1955 (NSW) by failing to pay the applicant long service leave.
In light of those declarations, I make the following orders:
(1)Pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth) the respondent pay the applicant the following:
(a)Wages pursuant to cl.24.1 of the Manufacturing and Associated Industries and Occupations Award 2010 as C14 Engineering/Manufacturing Employee Level I.
(b)Superannuation contributions pursuant to cl.35 of the Manufacturing and Associate Industries and Occupations Award 2010 for the years ending June 2012, 2013 and 2014.
(c)A payment in lieu of notice of termination pursuant to s.117(3) of the Fair Work Act 2009 (Cth) of five weeks wages.
(d)Accrued annual leave pursuant to s.90(2) of the Fair Work Act 2009 (Cth).
(e)Annual leave loading pursuant to s.90(2) of the Fair Work Act 2009 (Cth) and cl.41.5 of the Manufacturing and Associated Industries and Occupations Award 2010
(2)Pursuant to s.12 of the Long Service Leave Act 1955 (NSW) the respondent pay the applicant long service leave.
(3)Pursuant to s.76 of the Federal Circuit Court Act 1999 (Cth), interest from 20 June 2014 (the date of termination of employment) up to the date of judgment on the total sum.
(4)The parties provide written submissions, setting out the relevant calculations with respect to each of the orders.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 1 June 2018
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