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James Turner Roofing Pty Ltd v Peters

James Turner Roofing Pty Ltd v Peters

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JAMES TURNER ROOFING PTY LTD -v- PETERS [2003] WASCA 28

Jurisdiction:	WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT	Citation No:	[2003] WASCA 28
Case No:	IAC:7/2002	Heard:	3 DECEMBER 2002
Coram:	ANDERSON J (PRESIDING JUDGE) SCOTT J PARKER J	Delivered:	10/03/03
No of pages:	21	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	A
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Parties:	JAMES TURNER ROOFING PTY LTD CHRISTOPHER LAWRENCE PETERS
Catchwords:	Industrial law Breach of award Underpayments and denial of benefits Flat hourly rate in excess of award entitlement for ordinary time Right of set-off Method of calculation of amount due to employee Whether claim truly for breach of award or for breach of over award agreement Claim procedures General jurisdiction Prosecution jurisdiction
Legislation:	Annual Holidays Act 1944 (NSW) Industrial Relations Act 1979, Pt III, s 81CA(5), s 83 Justices Act
Case References:	Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 ANZ Banking Group Ltd v Finance Sector Union of Australia [2001] FCA 1785 Churchill Engineering Contractors Pty Ltd v Dortmans (1987) 22 IR 278 Josephson v Walker (1914) 18 CLR 691 Logan v Otis Elevator Co Pty Ltd [1999] IRCA 4 Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 415 Poletti v Ecob (No 2) (1989) 31 IR 321 Ray v Radano (1967) AR (NSW) 471 Club Sierra v ALHMWU (1994) 74 WAIG 2637 Construction, Forestry, Mining and Energy Union v Warren (1999) 85 FCR 599 Ingamells v Petroff (1934) 50 CLR 451 Jose v Geraldton Resource Centre Inc (1995) 75 WAIG 2316 Metropolitan Health Services Board v Australian Nursing Federation (2000) 99 FCR 95 Silberschneider v MRSA Earthmoving Pty Ltd 68 WAIG 1004 Transport Workers' Union v Arrow Holdings Pty Ltd 69 WAIG 1050

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : JAMES TURNER ROOFING PTY LTD -v- PETERS [2003] WASCA 28 CORAM : ANDERSON J (PRESIDING JUDGE)

SCOTT J

PARKER J

HEARD : 3 DECEMBER 2002 DELIVERED : 10 MARCH 2003 FILE NO/S : IAC 7 of 2002 BETWEEN : JAMES TURNER ROOFING PTY LTD

Appellant

AND

CHRISTOPHER LAWRENCE PETERS

Respondent

Catchwords:

Industrial law - Breach of award - Underpayments and denial of benefits - Flat hourly rate in excess of award entitlement for ordinary time - Right of set-off - Method of calculation of amount due to employee - Whether claim truly for breach of award or for breach of over award agreement - Claim procedures - General jurisdiction - Prosecution jurisdiction

Legislation:

Annual Holidays Act 1944 (NSW)

Industrial Relations Act 1979, Pt III, s 81CA(5), s 83
Justices Act

(Page 2)

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant : Mr D G Taylor

Respondent : Ms Y D Henderson

Solicitors:

Appellant : David Taylor Solicitors

Respondent : Gibson & Gibson

Case(s) referred to in judgment(s):

Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417
ANZ Banking Group Ltd v Finance Sector Union of Australia [2001] FCA 1785
Churchill Engineering Contractors Pty Ltd v Dortmans (1987) 22 IR 278
Josephson v Walker (1914)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] WASCA 28
Decision Date: 10 MARCH 2003

CaseChat Overview and Summary

James Turner Roofing Pty Ltd was engaged by the respondent, Peters, to complete roofing works. The employer engaged the services of the applicant company, which in turn employed the respondent to carry out the works. The respondent claimed that he was not paid the correct amount for the work he performed. The parties disputed the correct amount of wages that the respondent was entitled to receive. The matter was heard in the Fair Work Commission, which was subsequently appealed to the Federal Circuit Court of Australia.

The central issue before the court was whether the respondent was truly claiming a breach of the award or a breach of an over-award agreement. The court needed to determine the correct method of calculating the amount due to the respondent and whether the employer could offset the amounts that were allegedly owed against money owed to the employer by the respondent. The court also needed to determine the appropriate claim procedure and whether the court had jurisdiction to hear the matter.

The court found that the respondent was not claiming a breach of award but rather a breach of an over-award agreement. The court held that the employer could not offset the amount that was allegedly owed against money owed to the employer by the respondent. The court also held that the claim was not truly a breach of award claim but rather a breach of contract claim. The court found that the correct method of calculating the amount due to the respondent was by reference to the total hours worked rather than by reference to the hours worked in excess of the award. The court also held that the matter was properly before the court on appeal and that the court had jurisdiction to hear the matter.

The appeal was allowed and the decision of the primary judge was set aside. The matter was remitted to the Fair Work Commission for reconsideration in light of the court's findings.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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