JF Hodge Pty Ltd v Brown
[2013] QCATA 36
•18 February 2013
| CITATION: | J F Hodge Pty Ltd v Brown [2013] QCATA 36 |
| PARTIES: | J F Hodge Pty Ltd (t/a Outback Refrigeration) (Applicant) |
| v | |
| Aaron Russell Brown (Respondent) |
| APPLICATION NUMBER: | APL337-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 8 February 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 18 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal upheld. 3. The decision made on 5 September 2012 is set aside. 4. The application filed on 23 May 2012 is transferred to the Magistrates Court of Queensland at Beenleigh. 5. Proceedings in the said Court shall be taken to have commenced on 23 May 2012. 6. The applicant Aaron Russell Brown shall be taken to have complied with all requirements of the Fair Work Act 2009 (Cth) for commencement and hearing in the said Court of a small claims procedure, within the meaning of section 548 of the said Act. 7. There shall be liberty to each party to apply for further directions upon 7 days’ notice in writing to the other party and to the Tribunal. |
| CATCHWORDS: | JURISDICTION – MINOR CIVIL DISPUTE - claim for wages due under award – award under Fair Work Act 2009 (Cth) – whether QCAT has jurisdiction to hear and determine the matter – whether Fair Work Act 2009 requires action to be brought in Federal or State magistrates court. Queensland Civil and Administrative Tribunal Act 2009, ss 32, 52 Plumbing and Fire Sprinklers Award 2010 (Cth) Fair Work Act 2009 (Cth), ss 12, 13, 14, 43, 45, 47, 48, 118, 539, 548, 565, Chapter 4 Commonwealth Constitution Ch III Boucaut Bay Co Ltd (in liq) v Commonwealth of Australia (1927) 40 CLR 98 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Applicant, J F Hodge Pty Ltd (‘Hodge’) seeks leave to appeal from a decision of the Tribunal awarding $2,300 to the Respondent (‘Brown’) for wages owing and unpaid for the period 23 to 26 February 2012.[1]
[1]Transcript of hearing 5 September 2012 (‘Transcript’) page 2. The particulars attached to Brown’s initiating process, filed on 23 May 2012 (attachment “B”) allege that he worked on 23/212, 24/3/12, 25/3/12 and 26/3/12. It appears that references to the month of March are erroneous, and that the employment ended, as stated by Brown in evidence, on 26 February 2012.
By agreement in writing dated 12 February 2012 (‘the Contract’) Hodge employed Brown as an electrician.[2]
[2] Annexure “A” to original application, filed 23 May 2012.
On 27 February 2012 Brown ended his employment with Hodge. It is common ground that he gave no period of notice.[3]
[3] Transcript pages 2, 3 (Brown and Hodge).
Brown contends that he was entitled to leave without notice; Hodge’s case is that one week’s notice was required,[4] and that, in its absence, Brown is not entitled to the amount claimed.
[4]Transcript page 3; Response filed 22 June 2012, Part D(2), paragraph 2; Contract page 2.
Hodge’s application for leave to appeal submits that:
a) QCAT has no jurisdiction to entertain Brown’s claim, and the primary tribunal should have so found;
b) The primary tribunal erred in finding that Hodge was not entitled to withhold the moneys claimed by Brown; and
c) In the premises the subject decision should be set aside.
Jurisdiction
Hodge contends that Brown’s claim arises under the Fair Work Act 2009 (Cth), (‘the FWA’) which confers no relevant jurisdiction upon this Tribunal. Brown disputes that proposition; each party has filed brief submissions on the point.
In particular, Hodge says that Brown’s employment is governed by an award made under the FWA, namely the Electrical, Electronic and Communications Contracting Award 2010 (‘the Award’), although the Contract does not mention the Act or the Award. I am satisfied that Brown, as a ‘national system employee’[5] and Hodge, as a ‘national system employer”[6] are subject to those enactments.[7]
[5] FWA s 13.
[6] FWA s 14.
[7] FWA ss 43, 45, 47-8.
It is lawful for an award to provide for notice of termination by employees,[8] and the relevant Award so provides.[9] While the Contract requires one week’s notice, the Award requires four weeks’ notice in writing. However, nothing turns on that point; only one week’s notice is in issue. The Award goes on to provide that, if an employee fails to give proper notice, the employer may withhold from moneys due to the employee an amount not exceeding the amount that would have been payable in respect of the required notice period.[10]
[8] FWA s 118.
[9] Award Clause 7.8(a).
[10] The Award Clause 14.2.
The jurisdictional issue has already been considered in this Tribunal, albeit not at length; I am not aware of higher authority.
In Wiechers v Sodexo Remote Sites[11] the question was whether a wages claim under the FWA could proceed in the Queensland Industrial Commission. In a brief judgment it was held that the Commission’s jurisdiction in such matters was precluded by the FWA.[12] However, according to Wiechers, QCAT could deal with the matter as a Minor Civil Dispute.[13] However, there was little discussion of special jurisdictional provisions of the FWA, and their implications for State tribunals.
[11] [2012] QCAT 16.
[12] [2012] QCAT 16 at [4].
[13] [2012] QCAT 16 at [3], citing ss 11, 12 and Schedule 3 of the QCAT Act.
In Centurion International Corporation Pty Ltd v Coetzee[14] the jurisdictional question was not canvassed. Centurion merely complained that the Adjudicator ignored its submissions, showed undue interest in the claimant’s case, and was biased. It also sought to adduce new evidence impugning the quantum of the claim. None of these submissions impressed the Appeals Tribunal, but because of the manner in which Centurion was conducted, it offers no assistance here.
[14] [2011] QCATA 14.
More to the point is Coates v McGarry,[15] in which the applicant recovered $2,695.95 under an FWA award.[16] The learned Member recognised that the FWA[17] contains comprehensive provisions for its enforcement by courts, namely the Federal Court, the Federal Magistrates Court and ‘eligible State or Territory Courts’.[18] Nevertheless, he concluded that that there is nothing in the FWA to oust QCAT’s jurisdiction to entertain Minor Civil Claims based on contracts of employment governed by FWA awards.[19]
[15] [2012] QCAT 187.
[16] The Plumbing and Fire Sprinklers Award 2010.
[17] FWA Chapter 4.
[18] FWA s 539.
[19] [2012] QCAT 187 at [14].
However, as it seems to me, the absence of a reference to tribunals in the FWA is less significant than its explicit references to courts. The FWA is ambitiously comprehensive legislation, significantly expanding the Commonwealth’s industrial powers. While it does leave some room for enforcement of its awards by ‘eligible State or Territory Courts’, those entities are defined as District, County or Local Courts, Magistrates courts, or any other State or Territory court prescribed by the regulations.[20] There is no regulation extending that definition to tribunals in general or to QCAT in particular. In confining jurisdiction to courts the draftsman probably had in mind Chapter III of the Commonwealth Constitution. It is notable that appeals from ‘eligible State courts’ do not remain in the State judicial system, but are reserved to the Federal Court.[21] No such right of appeal appears in the QCAT Act; it would be anomalous, not to say ultra vires, if it did.
[20] FWA s 12, Dictionary.
[21] FWA s 565.
It is true[22] that the FWA, in a list of State laws unaffected by it, refers to ‘claims for enforcement of employment contracts’,[23] but in my respectful view that provision should be read strictly as a residuary clause preserving State jurisdiction over contracts of employment not subject to an FWA award.[24] This is not an academic point; in practice, and despite the wide embrace of the FWA, such arrangements are not uncommon. The Miscellaneous Award 2010 (Cth) (as amended) relevantly provides:
The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
[22] As pointed out in Coates v McGarry [2012] QCAT 187 at [14].
[23] FWA s 27(2)(o).
[24] See FWA s 12 defining “award/agreement free employees”.
Decisions confirming the award-free status of various employees include Tucker v Digital Diagnostic Imaging Pty Ltd,[25] Halasagi v George Weston Foods Ltd,[26] Hehir v Schweitzer Engineering Laboratories Pty Ltd[27] and McMenemy v Thomas Duryea Consulting Pty Ltd (t/a Thomas Duryea Consulting).[28] Clearly it is desirable, absent remedies under the FWA, that such employees should not be deprived of their remedies at common law, including the common law of debt, as applied in this Tribunal. So it is quite possible to give meaning and practical effect to section 27(2)(o) of the FWA without trespassing upon jurisdiction that the FWA explicitly confers upon ‘eligible State courts’.
[25] [2011] FWA 1767 (senior IT manager).
[26] [2010] FWA 6503 (digital programmer).
[27] [2011] FWA 3763 (project manager).
[28] [2012] FWAFB 7184 (State manager).
That jurisdiction includes a special ‘small claims procedure’ for recovery of moneys due under a ‘fair work instrument’,[29] to a limit of $20,000.[30] The prescribed procedures are remarkably similar to those in QCAT’s original jurisdiction,[31] but the claim must be brought in ‘a [State] magistrates court or the Federal Magistrates Court’.[32]
[29] Including a “modern award”: FWA s 12.
[30] FWA s 548(2).
[31]Court procedures and rules of evidence are not mandatory, and the court may proceed informally, unfettered by “legal forms and technicalities”: FWA s 548(3).
[32] FWA s 548(1)(a).
It is interesting, and perhaps significant, that no claim for wages due under the FWA appears to have been dealt with in the civil jurisdictions of the Victorian Civil and Administrative Tribunal,[33] or the State Administrative Tribunal of Western Australia.[34]
[33] “Civil claims list”, no quantum limit.
[34] “Minor matters procedure” is available for claims up to $10,000.
In the premises, I conclude that Hodge’s objection to QCAT’s jurisdiction over FWA award (as distinct from “non-award”) claims is well founded. It follows that the primary decision involves an error of law requiring a grant of leave to appeal, and allowance of the appeal for want of jurisdiction.
However, a dismissal for want of jurisdiction raises no estoppel.[35] Brown might renew his claim in a court of competent jurisdiction; by the same token, Hodge might rely upon its present defence, other than an objection to jurisdiction.
[35] Cross on Evidence 5th Aust edn at [5025].
Retention of Wages in Default of Notice
In view of my decision upon the jurisdictional issue, it is unnecessary to determine this ground of appeal. However, in case I am wrong on that point, and am corrected in a higher place, some brief observations on the retention issue may assist the parties.
I have already noted that the Award requires a longer period of notice than the Contract, so that the Contract lawfully grants the employee more favourable conditions than the National Employment Standards require.
The Award’s “withholding clause”, [36] which is akin to a liquidated damages clause at common law, dispenses with the need to prove actual loss.[37]
[36] Award Clause 14.2. See paragraph [8], above.
[37]Boucaut Bay Co Ltd (in liq) v Commonwealth of Australia (1927) 40 CLR 98 at 106 per Isaacs ACJ.
Brown, who worked for Hodge for less than one week (23 to 26 February 2012) claims an amount of $2,205, including $875 for overtime. The contracted hourly rate of $35 (overtime excepted) is well above the minimum Award rate.[38] But according to Hodge the correct amount, before tax, is only $1,400.[39] It is apparent that, if the matter proceeds in another forum, further and better particulars of quantum will be required for a proper application of Clause 14.2 of the Award. But these are questions for another time and place.
[38] Award Clause 16.2 (2012 version).
[39]Submissions 7 November 2012 paragraph 2.4. At the hearing Hodge was unable to specify an amount: Transcript page 7.
Transfer of Proceedings
Want of jurisdiction notwithstanding, the Tribunal has available a better solution than a mere dismissal of the claim. I propose to order the transfer of this matter to the Magistrates Court,[40] with consequential orders[41] to facilitate proceedings therein.
[40] QCAT Act ss 52(2) and (6) (Tribunal may act on own initiative).
[41] QCAT Act s 52(4).
Orders
Leave to appeal granted.
Appeal upheld.
The decision made on 5 September 2012 is set aside.
The application filed on 23 May 2012 is transferred to the Magistrates Court of Queensland at Beenleigh.
Proceedings in the said Court shall be taken to have commenced on 23 May 2012.
The applicant Aaron Russell Brown shall be taken to have complied with all requirements of the Fair Work Act 2009 (Cth) for commencement and hearing in the said Court of a small claims procedure, within the meaning of section 548 of the said Act.
Liberty to each party to apply for further directions upon 7 days’ notice in writing to the other party and to the Tribunal.
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