Hall v Medical Imaging Queensland Pty Ltd
[2015] FCCA 326
•17 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALL v MEDICAL IMAGING QUEENSLAND PTY LTD | [2015] FCCA 326 |
| Catchwords: INDUSTRIAL LAW – Leave accrual – where leave does not accrue whilst employee on unpaid leave or unpaid authorised absence – s.22(2)(b) of the Fair Work Act 2009 (Cth) – where employee in receipt of compensation payments paid by WorkCover (Qld) for work related injury – whether employee’s absence was unpaid – leave not unpaid. |
| Legislation: Fair Work Act 2009 (Cth), ss.22(2)(b), 22(2)(b)(iii), 22(2)(c), 44, 87, 87(1), 87(2), 102, 108, 130, 130(1), 130(2), 384, 547, 547(2), 570(2) Federal Circuit Court of Australia Act 1999 (Cth), s.76 |
| Miller v Sunland Park Pty Ltd & Anor (No.2) [2014] FCCA 1414 Webster v Toni and Guy Port Melbourne Pty Ltd t/as Toni and Guy Port Melbourne [2010] FWA 4540 Workpac Pty Ltd v Bambach (2012) 220 IR 313 |
| Applicant: | AARON JUSTIN HALL |
| Respondent: | MEDICAL IMAGING QUEENSLAND PTY LTD |
| File Number: | BRG 684 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 24 October 2014 |
| Date of Last Submission: | 24 October 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 17 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stobie |
| Solicitors for the Applicant: | McNamara & Associates |
| Counsel for the Respondent: | Mr Lister QC |
| Solicitors for the Respondent: | Synkronos Legal |
ORDERS
The applicant have judgment against the respondent for $25,132.32 inclusive of $1,376.82 for interest up to judgment.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 684 of 2014
| AARON JUSTIN HALL |
Applicant
And
| MEDICAL IMAGING QUEENSLAND PTY LTD |
Respondent
REASONS FOR JUDGMENT
It is uncontroversial that between 26 March, 2012 and 26 March, 2014 Mr Hall was employed by the respondent as a sonographer. He was injured on 26 March, 2012 and from that day until 26 March, 2014 he was in receipt of workers’ compensation payments. His employment came to an end on 26 March, 2014.
At issue in this case is whether Mr Hall accrued annual leave during the period he was on workers’ compensation benefits. The answer to that issue depends upon the proper construction of certain provisions of the Fair Work Act2009 (Cth) and the Workers Compensation and Rehabilitation Act 2003 (Qld).
If Mr Hall is correct, he is entitled to:
a)Annual leave 458.61 hours @ $55.00 per hour $25,223.55
b)Leave loading 458.61 hours @ $9.625 per hour $4,414.12
c)Less annual leave paid on separation $5,882.17
Balance $23,755.50
Mr Hall seeks an order that the respondent pay to him $23,755.50 together with interest from 26th March, 2014 to the date of judgment and costs.
Mr Hall was a national system employee for the purposes of the Fair Work Act. His employment was governed by the Health Professionals and Support Services Award 2010. Pursuant to cl.31 of the Award, his entitlement to annual leave is found in the National Employment Standards established by Division 2 of Part 2-2 of the Fair Work Act and in particular, in s.87 of that Act.
Shorn of irrelevant matters, s.87 of the Fair Work Act provides:
87 Entitlement to annual leave
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to:
(a) 4 weeks of paid annual leave; or
As can be seen from s.87(1), annual leave accrues with service. Service is defined in s.22 of the Fair Work Act as follows:
22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2‑2 (which deals with community service leave); or
(ii) a period of stand down under Part 3‑5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii)a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
There are no regulations for the purposes of ss.22(2)(b)(iii) or 22(2)(c) of the Fair Work Act.
There is no dispute that Mr Hall was employed by the respondent during the relevant period. Nor is there any dispute that his leave was authorised by the respondent. The difficulty between the parties arises from s.22(2)(b) of the Fair Work Act.
Mr Hall argues that his absence was not unpaid because WorkCover were paying compensation to him that the respondent was otherwise obliged to pay. The respondent argues that the period under consideration was a period of unpaid leave or unpaid authorised absence because Mr Hall was in receipt of workers’ compensation payments during the relevant period and was not paid wages by his employer. The respondent argues that the period concerned is expressly caught by s.22(2)(b) and therefore does not count as service for the purposes of the accrual of annual leave.
The nub of the issue, as senior counsel for the respondent put it, is whether, to fall outside of s.22(2)(b), an employee’s employer must make the payments to the employee whilst he or she is absent or on leave.
The applicant brought two decisions of Fair Work Australia to my attention. Neither is on all fours with the present case, but both are instructive.
Webster v Toni and Guy Port Melbourne Pty Ltdt/as Toni and Guy Port Melbourne [2010] FWA 4540 concerned the entitlement of a worker to the benefit of the unfair dismissal provisions of the Fair Work Act. To be covered by those provisions, he needed to establish that he had been in the continuous service of his employer for a period of at least twelve months. His employment was interrupted by a period of authorised absence that he took to recover from a road traffic accident. He was not paid by his employer during that period as he was not entitled to paid personal leave but he was paid by the Transport Accident Commission pursuant to a statutory scheme of compensation for motor vehicle accidents.
The period of employment for the purposes of the unfair dismissal jurisdiction is defined in s.384 of the Fair Work Act. That section, in turn, draws upon the definition of continuous service set out in s.22 of the Fair Work Act. The employee argued that because he was paid by the Transport Accident Commission he was not on unpaid leave or an unpaid authorised absence at the relevant time. He argued that the time that he was on leave counted as part of his continuous service and so the unfair dismissal provisions of the Fair Work Act were engaged. The Fair Work Commissioner rejected that argument and determined that the terms paid and unpaid for the purpose of s.22 of the Fair Work Act clearly referred to a payment by or on behalf of the employer. The payments by the Transport Accident Commission were not made for or on behalf of the employer. Accordingly, s.22(2)(b) was engaged and the period in respect of which the employee was absent and receiving payments from the Transport Accident Commission was not service for the purposes of s.22 of the Fair Work Act.
In Workpac Pty Ltd v Bambach [2012] FWAFB 3206, a Full Bench of Fair Work Australia considered whether time spent by an employee in receipt of workers’ compensation benefits in New South Wales constituted “service” for the purposes of s.22 of the Fair Work Act. That case too, concerned an employee’s entitlement to the protections of the unfair dismissal provisions of the Fair Work Act. The employee was injured in the course of his employment soon after his commencement with the employer. He had a period away from work during which he was in receipt of workers’ compensation payments from the employer’s workers’ compensation insurer. The day following his return to work, his employment was terminated. If the period that he was absent on leave counted as part of his service, he had access to the unfair dismissal laws.
The Full Bench held that the absence was not an unpaid absence for the purposes of s.22(2)(b) of the Fair Work Act because the employer was under an obligation pursuant to the Workers’ Compensation Act 1987 (NSW) to make the compensation payments to the applicant. The Full Bench said:
[32] The word ‘unpaid’ presents an insurmountable problem for the appellant in this case. The period during which Mr Bambach was absent due to his work related injury was not ‘unpaid’. During the relevant period Mr Bambach received compensation payments in accordance with the provisions of the Workers’ Compensation Act 1987 (NSW) (the Workers’ Compensation Act). Those payments were made pursuant to a legal obligation upon Mr Bambach’s employer, WorkPac. Section 9(1) of the Workers’ Compensation Act provides:
“A worker who has received an injury ... shall receive compensation from the worker’s employer in accordance with this Act” [emphasis added]
…
[37] Contrary to the appellant’s submission, the fact that WorkPac chose to insure against such liabilities, and hence the payments were actually made by WorkPac’s insurer, is irrelevant. The fact that the payments were made pursuant to a legal obligation upon the employer is the critical consideration. The nature of the payment does not change because the employer has entered into an indemnity arrangement with a third party.
The reason for the different outcomes in Webster and Bambach is obvious. In the former, the employee was not entitled to any form of remuneration from his employer during his period of leave – his entitlement to payments came from the relevant traffic accident legislation and was unconnected with his employment. His receipt of entitlements under that scheme was not dependent upon him being an employee. In the latter, his employer was obliged to remunerate the injured worker during his absence from work in accordance with the Workers Compensation Act 1987 (NSW). That the employer had put in place arrangements to be indemnified for any payments that it might have to make to him for that period was of no consequence.
The scheme of the Workers Compensation and Rehabilitation Act2003 (Qld) seems to be as follows (all references are to the WCRA unless otherwise stated):
a)a worker injured in the course of his employment is entitled to compensation: s.108(1);
b)compensation includes, amongst other payments, an amount payable as weekly payments to the worker during the period of the worker’s incapacity and amounts for appropriate medical treatment, hospitalisation and rehabilitation of the worker: ss.9, 145(2), 208(2);
c)an employer is legally liable for compensation for injury sustained by a worker employed by the employer: s.46(1);
d)an employer must be insured against the employer’s legal liability for compensation to the employer’s workers for injury sustained by them: s.48(1);
e)the employer’s insurance must be provided for under a licence as a self-insurer or under a WorkCover policy: s.48(3);
f)if an employer is a self-insurer, the employer must pay the compensation: s.109(1);
g)if not, WorkCover must pay the compensation: s.109(2);
h)save in circumstances where a worker has made a claim for compensation but that claim has not yet been determined by WorkCover (as provided for in s.109(4)), an employer who is not a self-insurer cannot pay a worker an amount, either in compensation or instead of compensation, that is payable by WorkCover under the Act for an injury sustained by the worker: s.109(3);
i)if an employer does so, it is liable to penalty equal to 50% of the employer’s premium for the period of insurance: s.109A(2);
j)an employer who has a policy of insurance with WorkCover, is liable to pay to a worker compensation for the excess period in respect of a claim for compensation accepted by WorkCover, as calculated according to Chapter 2 Part 3 Division 4 of the Act;
k)an employer may not insure against payments it is liable to make in the excess period with WorkCover: s.67;
l)if WorkCover has paid compensation for an injury sustained by a worker when the employer was not insured against the employer’s legal liability for compensation to the worker the employer is liable to pay to WorkCover the amount of any payment made by WorkCover to the injured worker together with a penalty equal to 50% of the payment: s.57(2)(b).
It is apparent from the above that the primary liability for compensation to an injured employee falls upon an employer. An employer is obliged to insure against that liability. If the employer does insure against that liability, the obligation to make payments to the employee falls upon the insurer. That might be WorkCover, or it might be the employer if they are licenced to self-insure. If the employer is not insured, the employer remains liable and in the event that WorkCover makes a payment to the injured employee it is able to recover from the employer any amounts it may have paid to the injured worker, together with a penalty. But the employer remains primarily liable. Moreover, in cases where an excess period applies, the employer must pay the compensation payable during the excess period.
Accordingly, Mr Hall argues that his leave of absence was not unpaid because his employer was legally liable to him for compensation throughout the period. It is not to the point, he says, to identify the source of the payments to him as WorkCover because WorkCover as the statutory insurer of the respondent was doing nothing more than indemnifying the respondent for its liability to him.
Against that the respondent raised two principle arguments. First, because the respondent did not pay anything to Mr Hall over the relevant period, his absence was unpaid. That is to say, for it not to be unpaid, the respondent must have made the payments to Mr Hall. Secondly, the respondent argues that Mr Hall’s submission fails to distinguish between the specific provisions of s.87 of the Fair Work Act and the more general provisions of s.130 of that Act.
As to the first argument, the respondent submits that the relevant period here was a period of unpaid authorised leave because the respondent did not make any payments to Mr Hall. The respondent argues that s.22(2)(b) should be read so that the reference to unpaid is a reference to unpaid by the employer.
The respondent points out that not only could the respondent not pay anything to Mr Hall by reason of the restrictions placed upon it by the Workers’ Compensation Act (Qld), but it would have been subject to sanction under that Act had it paid compensation to him. In those circumstances it could hardly be said that during the relevant period, Mr Hall had been paid by the respondent.
As Webster illustrates, a worker might be absent from work due to injury for which his employer has no liability to pay him compensation. However, the worker might have an entitlement to receive payments in respect of his injury or any disability that it might cause. That right might arise pursuant to a statutory compensation scheme such as was the case in Webster or it might be through a private insurance arrangement entered into by the employee. There are other possibilities.
What then differentiates between an employee who is absent and paid compensation by reason of a statute like the Workers’ Compensation Act (Qld) and a worker who receives payment because of a private insurance arrangement or a statutory “no fault” compensation scheme? The answer is supplied by Bambach. That decision demonstrates that, if the employer has an obligation to pay the employee whilst he is absent, then whether the employer pays the employee, or another does on the employer’s behalf does not matter. The absent is not unpaid for the purposes of s.22(2)(b) of the Fair Work Act.
Bambach does not bind me but it is I think, with respect, correct. What is important is the existence of an obligation on the employer to pay the employee whilst he or she is absent.
The respondent argues that Bambach is distinguishable because the terms of the New South Wales statute considered there, are different to the Queensland legislation. True it is, as the respondent points out, that the text of the legislation considered in Bambach is different to the text of s.46 of the Workers’ Compensation Act (Qld), but the work done by the sections is the same. Both sections impose an obligation on an employer for compensation to the injured worker. The respondent argues that the New South Wales legislation requires that the worker receive compensation from the worker’s employer and that requirement is absent in the Queensland legislation. But both statutes impose an obligation upon the employer to pay compensation to the injured employee.
In Queensland, that obligation is discharged by the employer undertaking either self-insurance or obtaining a policy of insurance with WorkCover. In the former case, the employer is liable to make the payments to the injured worker. In the latter it is WorkCover. Even where WorkCover insurers an employer, the employer may be called upon to make payments to the employee where there is an applicable excess period.
If the respondent’s argument is correct, it would lead to the anomalous situation where an injured employee’s entitlement to accrue annual leave whilst on an authorised absence from work was dependent upon whether his employer had chosen to self-insure for the employer’s liability to the employee for compensation. The construction contended for by Mr Hall would avoid such an anomalous result and would place all injured workers on the same footing with respect to service for the purposes of s.22 of the Fair Work Act.
That point was remarked upon by the Full Bench in Bambach:
[39] In the context of workers’ compensation obligations it is important to appreciate that many employers choose to self insure. In such instances the payment of compensation and, where relevant, accident pay would be made by the employer directly. If the appellant’s contention were accepted then an absence on workers’ compensation would be an ‘unpaid authorised absence’ if the worker’s employer was insured, but such an absence would not be regarded as ‘unpaid’ if the worker’s employer was self insured. Such an arbitrary outcome also tells against the construction advanced by the appellant.
The respondent argued that the fact that s.46 of the Workers’ Compensation Act (Qld) imposes a liability does not detract from the proposition that, “what is left at the end of the Act is that the liability is one that is not ever discharged by the employer and is discharged by WorkCover unless the employer is a self-insured party”. But in my view that argument inherently recognises that there are circumstances where an employer will pay compensation to an injured employee so as to discharge the obligation imposed upon the employer by s.46 of the Workers’ Compensation Act (Qld). It is not the case that an employer can never pay an amount of compensation to an injured employee. The Act merely confines that possibility to the circumstances I have already identified.
As to the second matter, the respondent argues that Mr Hall’s submission fails to distinguish between the specific provisions of s.87 of the Fair Work Act relating to annual leave and the more general provisions of s.130 of that Act which relate to all types of leave. The respondent argues that this is something which the Full Bench failed to do in Bambach and is another reason why that decision is distinguishable.
The respondent points out that annual leave is something which accrues as a consequence of the performance of work or the performance of service and not by the fact of the employment relationship alone. In that respect the respondent’s argument is plainly correct. Annual leave accrues by reason of service: s.87(1) of the Fair Work Act. It accrues incrementally over the course of a year of service: s.87(2) of the Fair Work Act. Other types of leave, unpaid carer’s leave (s.102 of the Fair Work Act) and community service leave (s.108 of the Fair Work Act) for example, do not accrue by reason of service.
The respondent points out that s.130(1) of the Fair Work Act (which appears in the Part 2-2 of the Act along with s.87) provides:
130 Restriction on taking or accruing leave or absence while receiving workers’ compensation
(1) An employee is not entitled to take or accrue any leave or absence (whether paid or unpaid) under this Part during a period (a compensation period) when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a law (a compensation law) of the Commonwealth, a State or a Territory that is about workers’ compensation.
(2) Subsection (1) does not prevent an employee from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law.
(3) Subsection (1) does not prevent an employee from taking unpaid parental leave during a compensation period.
Both parties acknowledge that s.130(1) takes away the right of a worker to take or accrue any leave entitlements, including annual leave, in respect of a period during which an employee is in receipt of compensation, unless a “compensation law” permits him to do so.
Section 130(1) is broad in its terms. It applies to any leave, not just annual leave. Thus, whilst its terms are apt to prevent the accrual of annual leave whilst an employee is in receipt of compensation, it is not limited to leave types which are a function of the service of an employee.
In Bambach the Full Bench supported its conclusion by suggesting that “the effect of s.130 is that a period of absence on workers’ compensation does not constitute service for the purpose of accruing an entitlement to the types of leave prescribed in Part 2.2 of the Act.” (at [50]). The Full Bench then went on to record that “The leave accrual rules in Part 2.2 provide that the entitlement to various forms of leave is dependent on the employee completing a prescribed period of service…” (at [51]). After referring to the Explanatory Memorandum to what is now s.130 of the Fair Work Act and discussing the arguments of the parties arising from the Explanatory Memorandum, the Full Bench concluded:
[55] … It seems to us that the Explanatory Memorandum in fact supports the contrary proposition, namely that an absence on workers’ compensation is not an ‘excluded period’ for the purpose of calculating an employee’s service and hence her or his entitlement to various forms of leave. Indeed if the appellant’s construction of s.22 was correct then there would be no need for s.130 to ‘switch off’ the leave accrual rules in Part 2.2.
[56] ‘Service’ for the purpose of the leave entitlements in Part 2.2 is defined in s.22(1) of the Act. If an absence on workers’ compensation was excluded from the calculation of ‘service’ in s.22 - as contended by the Appellant - then why was it necessary to enact s.130(1) to ‘switch off’ the standard accrual rules? If the appellant’s construction of s.22(2)(b) was correct then s.130(1) would be otiose. If absence on workers’ compensation was ‘unpaid authorised absence’ within the meaning of s.22(2)(b), and hence excluded from the definition of service by an employee with their employer, then there would be no need for the specific exclusion provided by s.130. As a general principle statutory provisions are to be given some meaning and effect.
I accept the respondent’s argument that these passages demonstrate that the Full Bench in Bambach did not turn its mind to the width of s.130(1) and the fact that it covers all leave types set out in Part 2-2 of the Fair Work Act, and not just those types of leave that accrue as a function of an employee’s service.
Section 130(1) of the Fair Work Act says nothing about an employee’s service. The effect of that section is not that a period of absence on workers’ compensation does not constitute service for the purpose of accruing an entitlement to the types of leave prescribed in Part 2.2 of the Act. The effect of the section is that an employee is not entitled to accrue any leave (whether paid or unpaid) under Part 2-2 of the Fair Work Act during a period when the employee is absent from work because of a personal illness, or a personal injury, for which the employee is receiving compensation payable under a compensation law.
I accept the respondent’s argument that if the construction of s.22(2)(b) for which it contends is correct (and a period of absence on WorkCover payments is an unpaid authorised absence), s.130(1) is not otiose. It still has work to do in respect of those types of leave that do not accrue as a function of service.
However, s.130(1) is subject to s.130(2). In that respect, s.119A of the Workers’ Compensation Act (Qld) provides:
119A Compensation entitlement does not restrict taking or accrual of leave
(1) This section applies to a worker who is entitled to compensation, including compensation payable as weekly payments.
(2) The worker is entitled to take or accrue annual leave, sick leave and long service leave under an Industrial Act or industrial instrument during the period to which the compensation relates.
Note- In relation to entitlements under the Fair Work Act 2009 (Cwlth), this section removes the restriction under section 130(1) of that Act.
Mr Hall’s entitlement to accrue annual leave arises under an industrial instrument for the purposes of s.119A(2) above. Whilst the Award that governed his employment does not, in terms, spell out the details of his annual leave and its accrual, the Award does incorporate s.87 of the Fair Work Act by its reference to the National Employment Standards.
Accordingly, s.130 of the Fair Work Act presents no bar to Mr Hall accruing annual leave entitlements over the relevant period if he is otherwise entitled to accrue them. The respondent did not contend to the contrary. As the respondent argues, service is the integral determinant of whether or not an accrual of annual leave will occur.
Conclusion
Mr Hall is entitled to the accrual of annual leave as claimed for during the period from 26 March, 2012 to 26 March, 2014. I accept that the respondent’s refusal to pay Mr Hall’s leave entitlement is a contravention of the National Employment Standards and constitutes a breach of s.44 of the Fair Work Act.
Upon termination of his employment Mr Hall became entitled to an annual leave payment in the amount of $23,755.50. The calculations are set out in his affidavit filed on 7 October, 2014. There was no challenge to those calculations.
Mr Hall seeks an order for interest on the unpaid leave entitlement. Section 547(2) of the Fair Work Act provides that in making an order such as that which I propose to make in Mr Hall’s favour, the Court must include an amount of interest unless good cause is shown to the contrary.
No submissions on the interest issue have been put to me by either party. I am not satisfied that good cause has been shown for not making an order for interest. No rate of interest is prescribed by s.547 of the Fair Work Act, nor by s.76 of the Federal Circuit Court Act 1999 (which deals with pre-judgment interest).
In Miller v Sunland Park Pty Ltd & Anor (No.2) [2014] FCCA 1414 Judge Simpson discussed the rate of interest that might be applied as follows:
19. No rate of interest is fixed or prescribed in the Federal Circuit Court Rules or Regulations. Sub-section 76(3)(c) of the FCC Act gives the Federal Circuit Court a discretion as to the rate of interest that should apply. The interest rate must not however infringe the exceptions referred to in s.76(4).
20. Prejudgment interest is also dealt with in the Federal Court of Australia Act 1976 (Cth) (“the FC Act”). As with the legislation for this Court, no rate of interest is fixed or prescribed by the FC Act. It remains for the Federal Court to exercise a judicial discretion. The usual practice in the Federal Court has been for the Judge to adopt the rate of interest that is applied by the Supreme Court of the State or Territory in which the Federal Court is dealing with the matter.
21. I note also that the Federal Court Practice Note CM 16 deals with pre-judgment interest. The Practice Note has no legislative force but is something to take into account. It provides as follows:
“1. Section 51A(1)(a) of the Federal Court of Australia Act 1976 (Cth) provides for the making of orders for the inclusion of interest in judgments.
2. Practitioners and litigants should expect that where, pursuant to s.51A(1)(a), interest in respect of a pre-judgment period is to be included in a judgment, the Court will have regard to the following rates, being rates agreed upon by the Discount and Interest Rate Harmonisation Committee established following a referral by the Council of Chief Justices of Australia and New Zealand:
(a) In respect of the period from 1 January to 30 June in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and;
(b) In respect of the period from 1 July to 31 December in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.”
It will be seen that the Practice Note is in very similar terms to r.39.06 of the Federal Court Rules 2011 (Cth) (“FC Rules”) dealing with post judgment interest on judgment debts entered in that Court, save that 4% above the cash rate is suggested rather than the 6% suggested in r.39.06.
Interest should be calculated from 26 March 2014 to the date of judgment. The rate of interest should be 4% above the cash rate published from time to time by the Reserve Bank of Australia in accordance with the above practice direction.
The amount of interest payable by the applicant is therefore calculated as follows:
Period
Applicable Rate
Total
26 March to 30 June 2014
6.5%
$406.12
1 July to 30 December 2014
6.5%
$769.93
1 January to 3 February 2015
6.5%
$143.83
4 February to 17 February
6.25%
$56.94
TOTAL
$1,376.82
On this basis, the total sum payable to Mr Hall inclusive of interest is $25,132.32.
Mr Hall seeks an order for costs. Again, no submissions were addressed to me on costs. Section 570(2) proscribes the Court’s power to make orders for costs. There was no attempt to bring these proceedings within one of the categories of cases described in s.570(2) that might attract a costs order. I note that Mr Hall deposes in his affidavit filed on October, 2014 that:
12. On 4 April, 2014 my solicitors on my behalf lodged a Form 10 “Application for the Commission to Deal with a Dispute in Accordance with a Dispute Settlement Procedure” with Fair Work Australia.
13. The parties appeared in the Fair Work Commission before Commissioner Simpson on 30 May 2014. Subsequent to that hearing, the Respondent refused to consent to arbitration of this dispute in the Fair Work Commission.
That evidence alone is not sufficient to persuade me that there ought to be an order for costs.
I make the orders set out at the commencement of these reasons.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 17 February 2015
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