Ian McNeill v Dynamic Developments Pty Ltd T/A Dynamic Developments
[2020] FWC 4211
•6 OCTOBER 2020
| [2020] FWC 4211 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Ian McNeill
v
Dynamic Developments Pty Ltd T/A Dynamic Developments
(C2020/4627)
COMMISSIONER YILMAZ | MELBOURNE, 6 OCTOBER 2020 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
Introduction
[1] An application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure under s.739 of the Fair Work Act 2009 (the Act) was filed by the AWU on 10 June 2020.
[2] The form F10 stated that the dispute concerns the employer’s refusal to pay their employee Mr Ian McNeill the entitlement of accrued annual leave while on workers compensation. The Applicant represented by his brother Mr Sam McNeill states he sought advice from the Fair Work Ombudsman, and it was confirmed that annual leave accumulates during workers compensation. Mr Ian McNeill submits that the Respondent states that there is no entitlement to accrued annual leave while absent from work due to a workplace injury and while in receipt of workers compensation payments.
[3] The matter was dealt with by me in conference on 19 June 2020 and after numerous unsuccessful attempts to have the Respondent appear, the matter was listed for hearing on 21 July 2020. The Respondent refused to participate in both proceedings and no response to the form F10 was received. Mr Cull of the Respondent hung up on my Chambers, failed to pick up phone calls and emails went unanswered. However, on the day of the hearing Mr Bradley Cull, Director informed my Chambers that he was no longer responsible for the business and had been removed from company communications then hung up the phone. Mr Craig Robinson, Shareholder, and founder of the company separately sent two emails asking that he be removed from the Commission’s email trail as the matter had nothing to do with him.
[4] Mr Ian McNeill was an employee of Dynamic Developments and sustained a work-related injury. He noticed that the company stopped the accrual of his annual leave while he was on workers compensation. He sought rectification of this directly with his employer but was advised it had nothing to do with them as it was an insurer matter. Mr Ian McNeill then sought assistance through his brother Mr Sam McNeill who is a former organiser.
[5] Prior to this dispute being lodged with the Commission, on 28 May 2020, the AWU emailed Mr Craig Robinson seeking that he rectify the entitlement of accrued annual leave and attached information from the Fair Work Ombudsman’s website which confirmed the entitlement. This email went unanswered.
[6] The AWU wrote again to Mr Robinson on 4 June 2020, seeking resolution after attempts to contact him had been unsuccessful. The AWU again reiterated the obligation to pay the entitlement and warned that the company is not above the law and should the matter not be rectified, further action will be taken. This email went unanswered. The email sent to Mr Robinson was as below:
‘Good afternoon Craig,
So far, my attempts to contact you have been unsuccessful, so I’m again writing to you concerning an employee of yours, Ian McNeill.
Ian is currently on workers compensation, however, as previously stated, he has indicted to me that he is not receiving his annual leave entitlements.
The Fair Work Ombudsman clearly states that an employee is entitled to accrue annual leave whilst on workers compensation. As his employer, it is your responsibility to ensure that he receives these entitlements.
Perhaps you think you’re above the law? I can assure you, you’re not.
I’m advising you to get in touch in Mr McNeill and rectify the matter.
If either myself or Mr McNeill has not heard from you by close of business tomorrow, I’ll be passing the matter on to the Fair Work Commission.
You can explain to them why you feel you’re exempt from industrial law.’
[7] A further email from the AWU was sent to Mr Robinson on 10 June 2020, advising that due to his failure to respond, the matter was being referred to the Fair Work Commission. Again, despite this email, Mr Robinson ignored the correspondence and failed to address the entitlement that the AWU insists the Respondent Dynamic Developments owed to Mr Ian McNeill.
[8] Before the Notice of Listing for hearing was sent to the parties, an email from my Chambers was sent to Mr Robinson and Mr Cull dated 9 July 2020 containing the following advice:
Dear Mr Robinson and Mr Cull,
I refer to the above matter which was allocated to Commissioner Yilmaz on 15 June 2020.
On 16 June 2020, a Notice of Listing was sent out to the parties in this matter and various attempts were made to contact the relevant representative/s of the Respondent company prior to the conference and at the time of the conference on 19 June 2020. As the Commission was unable to reach a relevant representative of the Respondent at the time of the conference, despite the Respondent being aware of the conference, the conference proceeded before Commissioner Yilmaz with the Applicant and his representative in attendance only.
On 9 July 2020, the Applicant’s representative Mr McNeill, lodged a Form F51 application with a draft Order requesting the Respondent to attend at a conference or hearing before the Commission. Having considered the Applicant’s request, the Commissioner intends to list this matter for a hearing on Tuesday 21 July 2020 and requires a representative of the Respondent company to attend. Should a representative of the Respondent company not attend the hearing, the Commissioner will proceed with the hearing, and Orders will be made in the Respondent’s absence in accordance with section 600 of the Fair Work Act 2009 (Cth) (the Act).
Please be aware that as shareholders and managers of the business respectively, there is an expectation that you appear in any proceeding conducted in the Fair Work Commission if a dispute is brought in accordance with section 739 of the Act.
The matter will now be listed for hearing on Tuesday 21 July 2020 and noting that the Commission is entitled to inform itself under section 590 of the Act, it is recommended that you attend this hearing. If you do not attend this hearing please be aware that section 677 of the Act provides that the failure of a person to attend before the Commission, where so ordered, is an offence under the Act which carries a maximum penalty of imprisonment for 6 months.
[9] Mr Robinson forwarded two emails prior to my listing of the matter for hearing as follows:
From: Craig Robinson [email protected]
Sent: Tuesday, 16 June 2020 8:18 PM
Subject: Re: Notice of Listing - C2020/4627 - McNeill v Dynamic Developments
Please not that this has been sent to the incorrect person.
I have only taken on this role and this business from the start of June 2020.
Ian was never employed by me or my company. He was employed by Dynamic Investment Ventures Pty Ltd. Please contact the Director of this company, Bradley Cull, for any matters regarding his employees.
From: Craig Robinson <[email protected]>
Sent: Tuesday, 7 July 2020 3:50 PM
Subject: Re: C2020/4627 - McNeill, Ian v Dynamic Developments T/A Dynamic Developments [SEC=UNCLASSIFIED]
Please remove me from this email chain. It is nothing to do with me.
Thanks,
Craig Robinson
[10] On the day of the hearing Mr Cull hung up on my Chambers, and Mr Robinson did not pick up his phone.The hearing proceeded without the presence of the Respondent.
Applicant’s submissions
[11] Mr Sam McNeill submitted that he was confused over the business legal entity because the payslips issued to Mr Ian McNeill referred to both Dynamic Developments and Dynamic Investment Ventures Pty Ltd. He submitted that Mr Ian McNeill had briefly met Mr Cull.Who is described as the Managing Director of the company on its website. Mr Sam McNeill submitted the letter of termination recently received was signed off by and emailed by Mr Robinson. Mr Robinson is described as Founder and Shareholder of Dynamic Developments and signed off the termination letter as Construction Manager.
[12] Mr Sam McNeill also submitted that he was informed that the Fair Work Ombudsman reported that they had difficulty getting either Mr Cull or Mr Robinson to the table to discuss the alleged breach of Mr Ian McNeill’s entitlements.
[13] Mr Sam McNeill submitted that he had heard that the company had commenced steps to change its legal entity. This was a concern to him as Mr Robinson had already terminated Mr Ian McNeill’s employment and he formed the view that unless the Commission determined the matter by way of an order, there would be difficulty in enforcing the payment of annual leave entitlements.
[14] Mr Sam McNeill submitted that the form F10 referred to the Dynamic Developments Labour Pty Ltd Enterprise Agreement 2017 (the Agreement), but admitted he was not entirely sure if the appropriate industrial instrument was the Agreement or the Building and Construction General On-site Award 2010 (Modern Award). Mr Sam McNeill confirmed he knew the employer traded as Dynamic Developments but had a number of similar named business names. Mr Sam McNeill also submitted that research of the ASIC website did not clarify the legal entity of the employer.
[15] Mr Sam McNeill presented evidence of Mr Ian McNeill’s payslips and correspondence from Mr Robinson which indicated Dynamic Developments on letterhead and email sign offs. Mr Sam McNeill submitted that Ian McNeill had difficulty is pulling together much more documentary evidence to clearly establish either the correct industrial instrument or the correct employer’s legal entity. I do note that no evidence from Mr Ian McNeill supported the contention that the employer was Dynamic Developments Labour Pty Ltd.
[16] Accepted in evidence was a letter of termination of employment signed off by Mr Craig Robinson, dated 29 April 2020 and was on Dynamic Developments letterhead.
Relevant industrial instrument
[17] Mr Sam McNeill submits that as it could not be established that Mr Ian McNeill was employed by Dynamic Developments Labour Pty Ltd, the relevant industrial instrument for the purposes of the dispute settlement procedure is the Building and Construction General On-site Award 2010 (the Modern Award).
[18] The Agreement applies to all its employees engaged in building and construction work as defined by the Modern Award, and employed by Dynamic Developments Labour Pty Ltd. Clause 15 of the Agreement provides:
15 DISPUTE RESOLUTION PROCEDURE
A major objective of this Agreement is to eliminate lost time and/or production arising out of disputes or grievances. In the event of a dispute about a matter under this Agreement, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the Employee or Employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the Employee or Employees concerned and more senior levels of management as appropriate.
15.1 If a dispute about a matter arising under this Agreement or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 15.1 have been taken, a party to the dispute may refer the dispute to FWC.
15.2 The parties may agree on the process to be utilised by FWC including mediation, conciliation and consent arbitration.
15.3 An Employer or Employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.
15.4 While the dispute resolution procedure is being conducted, work must without interruption from industrial stoppages, bans and/or limitations while these procedures are being followed. Subject to applicable occupational health and safety legislation, an Employee must not unreasonably fail to comply with a direction by the Employer to perform work, whether at the same or another workplace, which is safe and appropriate for the Employee to perform.
15.5 Where the matter in dispute remains unresolved, FWC may exercise any method of dispute resolution permitted by the FW Act that it considers appropriate to ensure the settlement of the dispute.
15.6 Any outcome determined by a third party shall not be inconsistent with the FW Act; the Code for the Tendering and Performance of Building Work 2016 (and any successor); any other applicable State and Territory Building and Construction Industry Codes of Practice and Implementation Guidelines; and other applicable legislation.
15.7 This procedure shall be followed in good faith without unreasonable delay.
15.8 If any party to a particular dispute fails or refuses to follow any step of this procedure the non breaching party will not be obligated to continue through the remaining steps of the procedure, and may immediately seek relief by application to FWC.
[19] On assessment of the Dynamic Developments Labour Pty Ltd Enterprise Agreement 2017 (Agreement), I note that it incorporates the Modern Award, and the dispute settlement clause enables disputes concerning the Agreement and the NES to be referred to the Commission, where disputes cannot be resolved in the workplace. I note clause 15.9 permits a party to seek relief from the Commission without the requirement to follow the rest of the steps in the dispute settlement clause where a party fails or refuses to follow the steps. Should the Agreement apply, there is no impediment to the Applicant seeking relief from the Commission.
[20] Should the Modern Award be the correct industrial instrument, clause 9 of the Modern Award provides:
9. Dispute resolution
9.1 Clause 9 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
9.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
9.3 If the dispute is not resolved through discussion as mentioned in clause 9.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
9.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 9.2 and 9.3, a party to the dispute may refer it to the Fair Work Commission.
9.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
9.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
[21] The Modern Award clause does not prevent the Commission from determining the dispute in accordance with the dispute settlement clause, provided the steps were followed under clauses 9.2 and 9.3. The clauses require the dispute to be resolved in a timely manner.
[22] As the Respondent has refused to participate in proceedings, the only evidence is from the Applicant. Should the submissions of the Applicant be accepted that the Respondent refused to respond to the dispute at the workplace level, I cannot find that there is any impediment to the matter proceeding before the Commission. On the evidence before me, and in the absence of contested evidence, I accept that the Applicant attempted to resolve the grievance through the process provided by either the Agreement or the Modern Award (whichever is applicable).
[23] Further I do not consider that clause 9.5 of the Modern Award prevents the Commission from determining the matter through arbitration, as clause 9.5 allows that the parties “may” agree on the process, and the use of the term “may” provides sufficient scope should there not be agreement on the process.
[24] In respect to the applicability of the correct industrial instrument, I have formed the view that the Modern Award is most likely the applicable instrument, as the only evidence of employer suggests it was Dynamic Developments, or Dynamic Investment Ventures Pty Ltd, rather than Dynamic Labour Pty Ltd. For this reason, I refer to the Modern Award’s annual leave provision.
[25] The relevant annual leave clause from the Modern Award is:
38. Annual leave
38.1 Leave entitlement
(a) Annual leave is provided for in the NES.
(b) For the purpose of the additional week of leave provided by the NES, a shiftworker means a continuous shiftworker as defined in this award.
38.2 Payment for annual leave
…
(b) In addition to the amount prescribed in clause 38.2(a), an employee must be paid during a period of annual leave a loading of 17.5% calculated on that amount. This loading will also be payable on accrued leave paid out on termination of employment.
[26] The relevant provision of the National Employment Standard (NES) on annual leave is as follows:
S.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;
(b) 5 weeks of paid annual leave, if (a shift worker) …
(2) An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates year to year.
[27] Clause 9 of the Modern Award, which is set out in [20] above, provides for unresolved disputes about matters pertaining to the Modern Award or NES to be referred to the Commission on application of a party, provided that the parties firstly try to resolve the dispute at the workplace level and follow the steps in clauses 9.2 and 9.3.
[28] Two relevant decisions of this Commission deal with the question whether annual leave accrues while absent from work and in receipt of workers compensation. 1 Regardless of whether an agreement or modern award applies, the NES applies and there is nothing in the NES to limit the accrual of annual leave. Neither the Agreement (if applicable) or Modern Award imposes restrictions on the accrual of annual leave while on a period of workers compensation.
Identification of the Respondent
[29] Despite the working relationship between Mr Robinson with Mr Ian McNeill and the written communications, both Mr Cull and Mr Robinson refused to participate in these proceedings and denied any involvement. In fact, Mr Robinson wrote that he had never met Mr Ian McNeill or had anything to do with him. These statements are not supported by the evidence.
[30] Pursuant to s. 590 of the Act the Commission may inform itself in an appropriate manner. In this matter I had conducted inquiries with ASIC and found:
Entity | ACN | Representative | Registration |
Dynamic Development Holdings Pty Ltd | 619206129 | Bradley Warren Cull Craig Douglas Robinson | 19/5/17- 29/5/20 29/5/20 – current Strike off action in progress |
Dynamic Developments Carpentry & Construction | Bus name Website name but website address is dynamicdevelopments.com.au | Craig Douglas Robinson Bradley Warren Cull Construction manager | Aug 2010 - current Mar 2015 – current Feb 2014 – Mar 2015 |
Dynamic Developments Assets Pty Ltd | 619 206 996 | Bradley Warren Cull | 19/5/17 - current |
DYNAMIC DEVELOPMENTS TRADING 1 PTY LTD | 619 207 046 | Bradley Warren Cull | 19/5/17 - current |
DYNAMIC DEVELOPMENTS TRADING 2 PTY LTD | 619 207 082 | Bradley Warren Cull | 19/5/17 - current |
DYNAMIC DEVELOPMENTS TRADING NO 3 PTY LTD | 625 972 394 | Bradley Warren Cull Craig Douglas Robinson | 4/5/18 - 6/2/20 22/4/20 – 29/5/20 29/5/20 - current |
DYNAMIC DEVELOPMENTS LABOUR PTY LTD | 619 207 153 | Bradley Warren Cull | 19/5/17 – current Under external administration |
DYNAMIC INVESTMENT VENTURES PTY LTD | 631 843 260 | Bradley Warren Cull | 22/2/19 - current |
[31] The registered business name Dynamic Developments appears linked to the publicised trading name Dynamic Developments Carpentry and Construction which leads to the website that promotes both Mr Robinson and Mr Cull as active in the business. The above table demonstrates the complex business structures managed by Mr Cull and Mr Robinson.
[32] Mr Ian McNeill submitted a tax return for 2018 which identified the employer as Dynamic Developments Pty Ltd, ABN 146 19207 153. There is no ASIC record for Dynamic Developments Pty Ltd connected to either Mr Robinson or Mr Cull. The ABN is for Dynamic Developments Labour Pty Ltd, the entity which is a party to the Agreement. However, no payslips or other evidence from Mr Ian McNeill supports the contention that he was covered by the Agreement or employed by this entity. Payslips issued to Mr Ian McNeill in May 2020 display the name Dynamic Investment Ventures Pty Ltd and contain the correct ABN for that entity being 39 631 843 260. It is unclear how Mr Ian McNeill may have been employed by Dynamic Investment Ventures Pty Ltd, as this company was registered in February 2019, while Mr Ian McNeill was employed well before 2019. The payslips also contain the name Dynamic Developments and the address for the Malvern East site.
[33] The letter of termination from Mr Robinson, Construction Manager, to Mr Ian McNeill dated 29 April 2020 is on Dynamic Developments Pty Ltd letterhead, with the address showing Malvern East. This letter clearly terminates Mr Ian McNeill’s employment on the grounds that the insurer CGU advise that he is unlikely to return to work in the near future. As mentioned above there is no evident ASIC record for Dynamic Developments Pty Ltd.
Consideration
[34] It is submitted that the grievance was brought to the attention of the employer and no response was forthcoming. When escalated by the AWU, correspondence from Mr Robinson was that the query was a workers’ compensation matter. Mr Sam McNeill submits further inquiries and correspondence were ignored by both Mr Cull and Mr Robinson. All AWU attempts to resolve the dispute went unanswered. In accordance with the dispute settlement procedure Mr Sam McNeill submitted a dispute pursuant to s.739 of the Act. All attempts at conciliation were frustrated by the Respondent refusing to participate.
[35] Having considered the substantive submissions of Mr Ian McNeill , if he is seeking a declaration or enforcement of a right, then the Commission has no jurisdiction to do so. However, if the Applicant is seeking that the Commission arbitrate a dispute to create a right and I form an opinion while doing so, then it is an exercise of an administrative power.
[36] In this case I find there is no ambiguity in the wording of the NES annual leave provisions. Neither the Agreement nor Modern Award limits the provisions of the NES. I have already referred to two full bench decisions of this Commission that confirm that annual leave accrues while an employee is absent on workers compensation in Victoria.
[37] Regardless of whether this dispute is characterised as relying on a judicial or arbitral function, Mr Ian McNeill may choose to seek a remedy through a court to enforce his right to his accrued annual leave. Further, despite the Commission’s attempts to inform itself of the legal entity of the Respondent, should Mr Ian McNeill press his claim, the above information may assist. Accordingly, the matter is dismissed.
COMMISSIONER
Appearances:
Mr Ian McNeill and Mr Sam McNeill for the Applicant
Hearing details:
2020
Melbourne (by telephone)
21 July
Printed by authority of the Commonwealth Government Printer
<PR721728>
1 ANMF v Alfred Health[2017] FWCFB 4420 and UFU v Emergency Services Telecommunications Authority T/A ESTA[2017] FWCFB 4537.
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