Higgins v Australian Commercial Catering Pty Ltd

[2015] FCCA 2668

FEDERAL CIRCUIT COURT OF AUSTRALIA

HIGGINS v AUSTRALIAN COMMERCIAL CATERING PTY LTD [2015] FCCA 2668

Catchwords:
INDUSTRIAL LAW – Dispute about calculation of amount payable pursuant to orders made 20 February 2015 and 3 July 2015 – costs.

Legislation:

Fair Work Act 2009 (Cth), ss.547, 570

Hospitality Industry (General) Award 2010 [MA000009]

Higgins v Australian Commercial Catering Pty Ltd [2015] FCCA 346
Higgins v Australian Commercial Catering Pty Ltd [2015] FCCA 2665

Applicant: PAUL HIGGINS

Respondent: AUSTRALIAN COMMERCIAL CATERING PTY LTD

File Number: SYG 2297 of 2014

Judgment of: Judge Altobelli

Hearing date: 24 July 2015

Date of Last Submission: 21 August 2015

Delivered at: Sydney

Delivered on: 12 October 2015

REPRESENTATION

Solicitors for the Applicant:  Robertson Saxton Primrose Dunn

Solicitors for the Respondent: Konstantine Darmos & Associates

ORDERS

1. That the Respondent make payment to the Applicant for overtime in the amount of $34,146.62.

2. That the Respondent make payment to the Applicant for superannuation on the overtime in the amount of $3,086.53, such amount to then be paid by the Applicant into his superannuation fund.

3. That the Respondent make payment to the Applicant for redundancy pay of $5,389.16.

4. That the Respondent make payment to the Applicant for interest from 10 October 2014 to judgment pursuant to section 547 of the Fair Work Act 2009 (Cth).

5. That the Respondent pay the Applicant’s costs in the sum of $3593.00.

6. That the Respondent be given 28 days to pay the foregoing amounts.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2297 of 2014

PAUL HIGGINS

Applicant

And

AUSTRALIAN COMMERCIAL CATERING PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is now the third set of reasons for judgment in this matter.  The first reasons were published on 20 February 2015 (Higgins v Australian Commercial Catering Pty Ltd [2015] FCCA 346). The second reasons were delivered orally on 3 July 2015 and later published (Higgins v Australian Commercial Catering Pty Ltd [2015] FCCA 2665). The parties to this dispute have struggled to reach consensus about how to implement the Court’s determination on the issues of the Applicant’s entitlements on leaving the employ of the Respondent.

2. Pursuant to directions made on 24 July 2015, the parties have filed further submissions, as well as a Minute of Order that they each submit reflects the Court’s findings.

3. An order will be made consistent with the Applicant’s proposed Minute.  A limited order for costs will be made in favour of the Applicant.  These reasons briefly explain why these orders have been made.

Discussion

1. The primary dispute between the parties is how the overtime that the Applicant is entitled to should be calculated.  The Applicant uses a formula that reflects the following factors:

   ·The amount the Applicant is entitled to is the ordinary or base rate calculated at $21.00 per hour in accordance with the contract, plus overtime which is calculated in accordance with the Award (Hospitality Industry (General) Award 2010 [MA000009]) rate (not the contract rate).

   ·The amount the Applicant should be paid is the difference between the above and what he was actually paid.

   The Applicant contends this is $34,146.64

2. The Applicant further contends that he is entitled to superannuation on this additional amount.  The Respondent does not contend otherwise, but says it should be calculated on the basis of its contention of the amount payable, which is set out below.

3. The Respondent uses a similar formula with this important difference – the amount that the Applicant is entitled to should be calculated by reference to an ordinary or base rate which is calculated by reference to the Award, and not the contractually agreed rate of $21.00 per hour.

4. The respondent’s contention is surprising.  The Respondent’s case was never presented on the basis that, somehow, the contractually agreed base rate of $21.00 per hour should be ignored. It is an absurd proposition.  For the Respondent to somehow contend that the reasons for judgment delivered in this case so far support its contention is equally absurd.

5. The calculations of the amount payable to the Applicant must be based on the agreed base rate of $21.00 per hour – which he was in fact paid by the Respondent.  It is surprising indeed that at this late stage, where the focus should be on the quantification of overtime payable, that it should ex post facto seek to rationalise the base rate as it does.  It smacks of opportunism.

6. The precise calculations underpinning the order the Applicant seeks is set out in a Schedule to his submissions.  The Respondent does not cavil with this calculation except on the issue of whether the base rate is $21 per hour, or the Award rate.  In the circumstances, all the Court can do is to accept these calculations.  It does so.

7. A costs order is appropriate. The Court’s reasons for judgment on 20 February 2015 were clear. The Court’s reasons on 3 July 2015 were equally clear. The Respondent’s surprising approach about calculating the Applicant’s entitlements was ill-considered and put the Applicant to further expense unnecessarily. The Court is well aware of the provisions of s.570 of the Fair Work Act and the general view that this is a no costs jurisdiction. But s.570(2) is very clear in its terms, and this is a case where s.570(2)(b) is enlivened. The Respondent’s actions in adopting an unreasonable approach to the calculation of the Applicant’s entitlements has put the Applicant to unnecessary expense.

8. Costs should be calculated in accordance with the Court Rules.  Whilst the Court considers the Respondent’s actions unreasonable it does not cross he threshold for indemnity costs. Costs should properly be calculated from 3 July 2015 when the matter first came before the Court.  The parties appeared in Court that day. The Order on 24 July 2015 was made in Chambers.  These reasons will be delivered in the absence of the parties to reduce costs.  What becomes apparent from the Applicant’s itemised bill of costs is as follows:

Item	Description	Cost
Item 13	Attendance at Court on 3 July 2015 for short Mention	$271.00
Item 3	obtain instructions, negotiate and draft documents pursuant to directions of 3 July 2015 (will be treated as a discrete event)	$1661.00
Item 3	obtain instructions, negotiate and draft documents pursuant to directions of 24 July 2015 (will be treated as a discrete event)	$1661.00
TOTAL		$3593.00

Such costs are to be paid within 28 days.

1. The Applicant’s proposed orders provide for a Registrar to calculate interest.  This is unnecessary.  Now that precise orders can be made as to the Applicant’s entitlement, interest calculations can be made by the parties lawyers.  Any further unreasonable actions will be met with a further costs order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  12 October 2015