Jones v RWH Parcel Delivery

[2008] FMCA 429

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JONES v RWH PARCEL DELIVERY PTY LTD & ANOR [2008] FMCA 429

INDUSTRIAL LAW – Application for enforcement of award – interpretation of the award.

Industrial Relations Act 1999 (Qld), s.287
Workplace Relations Act 1996 (Cth), ss.167, 171, 717, 719(1), s.719(6), 727, 728
Evidence Act 1995 (Cth)
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)

Jordan v Tasmanian Perpetual Trustees [2007] FMCA 1511
Short v FW Hercus Pty Ltd [1993] 40 FCR 511
George A Bond & Co. Ltd (in liq) v McKenzie [1929] AR (NSW) 498

Applicant: ELIZABETH JONES

First Respondent: RWH PARCEL DELIVERY PTY LTD

Second Respondent: REES HOUSTON

File Number: BRG 733 of 2007

Judgment of: Cassidy FM

Hearing date: 29 February 2008

Date of Last Submission: 13 March 2008

Delivered at: Brisbane

Delivered on: 21 April 2008

REPRESENTATION

Counsel for the Applicant: Mr Murdoch

Solicitors for the Applicant: Corrs Chambers Westgarth

The Respondents: In person

ORDERS

(1)That this matter be adjourned to a date to be fixed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 733 of 2007

ELIZABETH JONES

Applicant

And

RWH PARCEL DELIVERY PTY LTD

First Respondent

REES HOUSTON

Second Respondent

REASONS FOR JUDGMENT

Introduction

1.This is a matter where the applicant Ms Jones is a workplace inspector employed by the Office of Workplace Services duly appointed under section 167 of the Workplace Relations Act 1996 (Cth) (“The Act”).

2.Ms Jones is applying for both a penalty (Order 1 of Further Amended Application filed 4 March 2008) and a remedy for payment of the under payment amount (Order 3 of Further Amended Application filed 4 March 2008) in these proceedings.  The First Respondent is the company that employed the employees that are the subject of this claim.  The Second Respondent Mr Houston is the sole director, company secretary and shareholder of RWH Parcel Delivery Pty Ltd (First Respondent).

3.The claim relates to 16 employees who were engaged to work for the First Respondent between 27 March 2006 and 28 March 2007 (the Relevant Period).  The employees were employed on a casual basis pursuant to an unwritten agreement.  The tasks the employees were required to perform were, inter alia, sorting and scanning parcels, cleaning the sorting shed and delivery of parcels.  All but 3 of the employees were paid $10.00 per hour.  Rachel Gudmann and Allan Wolfenden were paid $15.06 per hour.  Jade Taylor was paid $10.00 per hour from 16 August 2006 to 20 September 2006 then she was paid $12.00 per hour from 21 September 2006 to 8 February 2007.

4.The issues I have to determine are

a)Whether the “Transport Distribution and Courier Industry Award Southern Division 2003” (Original State Award) (Rate 1) applies to these employees or whether the Queensland Minimum Wage set by the Queensland Industrial Relations Commission (QIRRC) (QMW) (Rate 2).

b)Whether Susan Miller and Allan Wolfenden worked for more hours than are set out in the wage sheets provided by the Respondents.  The Applicant alleged Ms Miller worked 36 hours.  The submission at the end of the evidence changed this to 34 hours.  It was alleged Wolfenden worked 20 hours. 

c)Whether Ms Aldworth and Ms Turner were paid separate cash payments for working certain hours.  The Respondent alleges he paid these two employees cash for additional hours they worked because they were receiving Centrelink benefits.

Background

5.The Second Respondent Mr Houston sets out the background information about his parcel delivery business in his Affidavit filed 22 January 2008.  He swears at paragraph 8:

RWH applied for and was awarded a further contract from 2003 until 30 June 2007.  It did so on the basis that labour costs would be $16 per hour.  However, I worked out that I could only afford to pay employees $10 per hour.  The difference between $10 per hour and $16 per hour accounted for superannuation, fuel and vehicle expenses and GST.  I calculated that the RWH could pay its employees $10 per hours by estimating what RWH would earn each month less expenses and then dividing the balance by the number of employees.  This equated to approximately $10 per hour per employee.

6.Mr Houston goes on at paragraph 11 to say:

RWH could not afford to pay its employees higher wages during the period of its contract with Australia Post.  RWH did not make a profit from the Australia Post mail contracts in Gladstone, Boyne Island, Tannum Sands and Rockhampton.

7.The Second Respondent then gives evidence of how he calculated the payment employees were to receive:

14.    By a process of experiment with RWH employees, I determined that it took approximately two minutes to deliver each mail item, whether to a residential or business address.  I called this the “parcel rate”.  By way of example, if an employee had 200 mail items to deliver on a given day, they should have been able to deliver them in 400 minutes, being approximately 6.667 hours.  After conducting the experiment, I used the results to calculate each employee’s hours of work and wages.

15.    I calculated the parcel rate for each employee every day and recorded it in writing.  As employees sorted and counted their mail items for the day, the number of mail items was recorded for each employee.  I was also required to keep a record of the number of mail items delivered each day by Australia Post, as RWH was paid by Australia Post on a per parcel basis.  The parcel rate could change daily, depending on the number of mail items to be delivered on any given day.  Hours could differ from day to day, week to week, although there were usually an average number of deliveries for certain days of the week.

16.    If employees delivered their parcels more quickly than the allocated time, they were still paid for the full amount of hours based on the applicable parcel rate.  If employees took longer time to deliver their mail items, they were only paid for the period of time calculated to deliver the applicable number of mail items.

The legislative framework

8.The Applicant in the Amended Outline of Submissions handed up at the commencement of the submissions and marked Exhibit 1 in the proceedings sets out the legislative framework for the application and I adopt the submission on this point:

PART 2 - LEGISLATIVE FRAMEWORK

1.  Section 719(1) of the Act relevantly provides:

“An eligible court may impose a penalty in accordance with this Division on a person if:

(a) the person is bound by an applicable provision; and

(b) the person breaches the provision.”

2.  The Federal Magistrates Court is an “eligible court” under section 717 of the Act.

3.  “Applicable provision” is defined in section 717 of the Act as follows:

“applicable provision, in relation to a person, means:

(a)     a term of one of these that applies to the person:

…(ii) the Australian Fair Pay and Conditions Standard;

…(iv)     a collective agreement…”

4. Under section 171 of the Act, an Australian Pay and Classification Scale (APCS) forms part of the Australian Fair Pay and Conditions Standard (Standard).  A breach of a provision of an APCS is therefore a breach of an “applicable provision”.

5.  A “notional agreement preserving State awards” (NAPSA) is not included in the definition of “applicable provision”.  However, clause 43 of schedule 8 of the Act provides that a NAPSA “may be enforced as if it were a collective agreement” and that a workplace inspector has the same functions and powers in relation to a NAPSA that he or she has in relation to a collective agreement.  The effect of this provision is that a penalty may be imposed under section 719 for a breach of a term of a NAPSA as if it was a term of a collective agreement and therefore an “applicable provision”.

6.  Section 719(6) of the Act provides:

“Where, in a proceeding against an employer under this section, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under an applicable provision (except a term of an AWA), the court may order the employer to pay to the employee the amount of the underpayment.”

7.  Section 727 of the Act provides that section 719 of the Act is a “civil remedy provision”.  Section 728 of the Act provides:

“(1)   A person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision.

(2)     For this purpose, a person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)     has aided, abetted, counselled or procured the contravention; or

(b)     has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)     has conspired with others to effect the contravention.

9.The Applicant also helpfully sets out in the submissions an outline of the First Respondent’s obligation to pay wages and casual loading to the relevant employees.  I adopt that submission to the extent it sets out the available rates payable to the employees:

PART 4 - FIRST RESPONDENT’S OBLIGATION TO PAY WAGES AND CASUAL LOADING TO RELEVANT EMPLOYEES

Obligations pre-Work Choices

1. Prior to the commencement of Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices), the Industrial Relations Act 1999 (Qld) (Qld Act) (and any applicable industrial instrument made pursuant to the Qld Act) applied to the First Respondent. 

2.  In this case, prior to Work Choices, the First Respondent’s obligation to pay wages and/or casual loading was derived from either:

(i) the common rule award “Transport Distribution and Courier Industry Award – Southern Division 2003” (Original State Award) (Rate 1); or in the alternative

(ii)     the Queensland Minimum Wage set by the Queensland Industrial Relations Commission (QIRC) by a general ruling made under section 287 of the Qld Act (QMW) (Rate 2).

10.I am also assisted by the Applicant’s submission on the Application of the Original State Award:

Application of the Original State Award

3.  The application clause of the Original State Award relevantly provides as follows:

“1.4  Award coverage

1.4.1      This Award applies to the employees classified in clause 5.1 engaged in or in connection with the transport of goods, wares, merchandise, material or anything whatsoever whether in its raw state or natural state, wholly or partly manufactured state or of a solid or liquid or gaseous nature or otherwise, and/or livestock.

1.4.2 This Award does not apply to the following:

…(b) Employees of milk carters and mail contractors.

1.5    Area of operation

For the purposes of this Award, the Southern Division and Districts will be as follows:

1.5.1 Southern Division - That part of the State south of a line commencing at the junction of the sea-coast with 22 degrees of south latitude; then by that parallel of latitude due west to 147 degrees of east longitude; then by that meridian of longitude south to 22 degrees 30 minutes of south latitude; then by that parallel of latitude west to the western border of the State.

1.5.2 Eastern District - That portion of the Southern Division along or east of a line commencing at the junction of the southern border of the State with 150 degrees of east longitude; then by that meridian of longitude due north to 25 degrees of south latitude; then by that parallel of latitude due west to 147 degrees of east longitude; then by that meridian of longitude due north to the southern boundary of the Mackay Division.

1.5.3 Western District - The remainder of the Southern Division.

1.6    Parties bound

This Award is legally binding upon the employees as prescribed by clause 1.4 and their employers, and the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) and its members.”

4.  The Relevant Employees were engaged at Barney Point, Gladstone, Queensland which, at 23.50 degrees south latitude is south of 22 degrees south latitude, and therefore in the Eastern Division of Southern District.

Does the award apply?

11.If the award does not apply then the employees would be entitled to the QMW.  This is explained in the outline of submissions, handed up by the Applicant, at page 11.  I accept this submission:

Application of the QMW

15.    Prior to Work Choices, if the Relevant Employees were not covered by the Original State Award (or any other industrial instrument), the QMW applied.  Under section 8A of the Qld Act, an employee is entitled to a wage that is not less than the QMW declared by the QIRC full bench's general ruling under section 287.  The QMW includes an adult rate of pay and a junior rate of pay, expressed as a weekly amount.  The QMW does not provide for any casual loading.  The QIRC Declaration of General Ruling – State Wage Case 2005, in force as at the commencement of Work Choices, provided for a weekly adult wage of $484.40.  In respect of casuals, the case provided:

“Award free employees who are engaged on a permanent part-time or casual basis shall be entitled to a minimum rate of the Queensland Minimum Wage divided by 40 for each hour or part thereof (including hours worked in excess of 40 per week).”

16.    In respect of juniors, such as Ms Austin (who was 20 at the relevant time), the case relevantly provided:

“Award free employees under the age of 21 shall be entitled to a minimum rate of pay calculated as a percentage of the Queensland Minimum Wage, or the equivalent hourly rate…The junior percentage rates are as follows:

Age           Percentage        Wages Per Week

………….

20 years and over……………100%  $484.40

12.In Jordan v Tasmanian Perpetual Trustees [2007] FMCA 1511 (14 September 2007) Federal Magistrate O’Sullivan summarised the authorities relating to how to approach interpretation of an award at page 7-8:

Approach to interpretation of award

13.    It was common ground that the Court, in interpreting the award, should have regard to general principles of statutory construction. The Court was referred to the decision of Short v F W Hercus Pty. Ltd. (1993) 40 FCR 511, where Burchett J. said at 520:

“The principles of statutory interpretation referred to are not inapplicable to an award which seeks, in a way, to legislate for the terms of conditions of employment of a number of persons engaged in a particular industry: cf. George A. Bond & Co. Ltd. (in liq.) v McKenzie (1929) AR (NSW) 498 at 503. Their application to the present problem would require the Court to consider the wider context of the award provision as the product of a series of decisions which might reveal plainly its general purpose and policies.”

14.    There was no evidence before the Court regarding the history of the relevant clause of the Award. In George A Bond & Co. Ltd (in liq) v McKenzie [1929] AR (NSW) 498, Street J. said at 503-504:

“Now speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees as such and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between the parties couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of the words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give the meaning consistent with the general intention of the parties to be gathered from the whole of the award.”

15.    The Court was also referred to the decision of Kucks v CSR Ltd. (1996) 66 IR 182 at 184, where Madgwick J set out the following legal principals applicable to the construction of an award:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framers of the document, bearing in mind that such framer(s) were likely of a practical bend of mind: and may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite near inconsistencies or infelicities of expression which might tend to some other readings. And meanings which avoid inconveniences or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”

16.    Finally, on this issue the Court was also referred to the decision in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) FCA 813, at [57] where French J, said:

“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 in cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned – see eg. Geo A Bond & Co. Ltd. (In Liq.) v McKenzie (1929) AR 499 at 503-4 (Street J.). It may be that this means that no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal construction I repeat what I said in - City of Wanneroo v Holmes 380:

“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”

17.    In summary, the approach to be taken in the interpretation of the award is well settled by the authorities. The award is to be interpreted in the same way as a statute or written contract. The award should be read as a whole, giving the words their ordinary and natural meaning. However, it is important to bear in mind that awards are often framed without careful attention to form and draughtsmanship. It is often appropriate to avoid a too literal approach to the words used.

13.O’Sullivan FM goes on at paragraph 19:

19.    In Short v FW Hercus Pty. Ltd. (1993) 40 FCR 511, Burchett J said in the context of the case before him:

“The respondent says the instant award is clear, and we must shut out eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent’s contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently: cf. Pickard v John Heine & Son Limited (supra) at 9, per Issacs ACJ. That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in the present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. “Sometimes” McHugh J said in Saraswati v The Queen (1991) 172 CLR 1 at 21, the purpose of legislation “can be discovered only by reference to the history of the legislation and the state of the law when it was enacted”. Awards must be in the same position.

But even if the language, read alone, appeared pellucidly clear, the tendency of recent decisions -- and this is the other answer to the argument put – would seem to require the court to look at the full context. Only then will all of the nuances of the language be perceived.”

14.The Applicant’s submissions on this issue are set out in pages 9, 10 and 11:

5.  The evidence indicates that the First Respondent had a contract for parcel delivery with Australia Post and that the Relevant Employees delivered parcels for Australia Post only or delivered parcels for Australia Post and other customers.

6.  “Mail contractor” is not defined in the Original State Award.  Nor has the Applicant been able to locate any case law regarding the application of the exemption in paragraph 1.4.2(b) of the Original State Award. 

7.  The history of the exemption in the Original State Award is as follows:

(i) The Original State Award commenced on 1 September 1993 and expressly provided that the Award does not apply to “employees of milk carters and mail contractors”;

(ii)     Prior to 1993, the “Carting Trade Award - Southern Division” applied.  The last reprint of this award is dated 1 November 1986 and states “This Award shall not apply to ...mail contract carters”;

(iii)    From 1925 to 1986 the Carting Trade Award - Southern Division stated “This Award shall not apply to .... mail contract carters...”; and

(iv)    The exemption was first introduced in August 1910, in respect of “drivers engaged in the carriage of mails for the Post and Telegraph Department under contract”. 

8.  It is unclear whether the exemption is intended to apply to:

(i) Persons who themselves have a contract to deliver mail; or

(ii)     Persons who are employed by a person or entity who has a contract to deliver mail.

9.  The Applicant submits the interpretation in paragraph 8(i) is the better view, and therefore the Original State Award applies to the Relevant Employees, who did not themselves have a contract to deliver mail.  Otherwise, persons such as the Relevant Employees who are employed by a person or entity who has a contract to deliver mail would not be covered by any common rule award of the QIRC.  Further, the interpretation in paragraph 8(i) is consistent with the historical wording of the exemption, in particular:

(i)     When the exemption was first introduced in August 1910, it applied in respect of “drivers engaged in the carriage of mails for the Post and Telegraph Department under contract”.  These words require that the “driver” himself (or herself) has a contract with the Department.

(ii)     When the exemption was first introduced in August 1910, there was also an exemption for “drivers of sanitary carts employed by contractors under contracts which were entered into before the date of this Determination”.  The Applicant submits these words (i.e. “drivers employed by contractors”) would have been used if the exemption for mail contractors was intended to have the meaning in paragraph 8(ii).

(iii)    The Applicant has been unable to locate any records to indicate that the change in wording of the exemption over time was intended to change the meaning of the exemption.

10.    The classifications in clause 5.1 of the Original State Award include the following classification:

“Grade 2

Loader - Freight Forwarder. Tow Motor Driver employed by a General Carrier.  Driving a vehicle not exceeding 4.5t GVM (Gross Vehicle Mass) and drivers of sedans, station wagons, motor cycles and other vehicles not mentioned elsewhere in this clause which do not have a GVM stated in a certificate of registration (including driver of a pilot vehicle.)”

11.    Grade 2 is the correct classification for the Relevant Employees, performing the duties described in Part 3 above.

12.    The Relevant Employees are casual employees as described in the Original State Award.  Clause 4.3.1 of the Original State Award relevantly provides:

“A casual employee is an employee who works less than 38 ordinary hours per week.”

13.    Clause 5.1 of the Original State Award sets wage rates for employees covered by the Original State Award.  In respect of Ms Austin who was a junior, clause 5.1.5(c) of the Original State Award provides:

“Where a junior employee aged 18 years or more is required to drive another vehicle and is in sole charge thereof, the junior will be paid the adult rate assigned to the class of driving that the junior is required to perform.”

Ms Austin is therefore entitled to be paid the adult rate under the Original State Award.

14.    For casual employees, clause 4.3.7 of the Original State Award provides for a casual loading:

“The hourly rate of pay for casual employees will be ascertained by dividing the appropriate weekly minimum Award rate for employees of the same class by 38, adding a loading of 23% thereafter, and then adding the appropriate divisional and district parity converted to an hourly basis.”

15.The First and Second Respondents submit in their outline of submissions filed 25 February 2008:

6.  In interpreting the Award, the First and Second Respondents submit that the Court should:

(a)     have regard to the general principles of statuatory construction; and

(b)     be careful to avoid a too literal adherence to the strict technical meaning of the words, view the matter broadly, giving consideration and weight to every part of the Award, and endeavour to give the meaning consistent with the general intention of the parties to be gathered from the whole of the Award.

7.  The First and Second Respondents submits that when interpreting the Award, just as a statute, reading the Award as a whole and giving words their ordinary and natural meaning, the relevant employees fall within the exemption of the Award in 1.4.2(b) because:

(a)     the history of the State Award indicates that mail contractors have been exempt for a long period of time; and

(b)     to construe the Award as extending to a person employed by a person or entity who is contracted to deliver mail would –

(i)      take a narrow approach to interpreting the award; and

(ii)     imply meaning into the clause of the Award

8.  The First and Second Respondents submits that a broad approach should be taken to interpreting the Award exempting both:

(a)     a person who is contracted to deliver mail; and

(b)     a person who is employed by a person or entity that is contracted to deliver mail.

16.After considering the history of the provision relating to mail contractors as set out in the Applicant’s submissions in the context of the discussion of Burchett J in Short v FW Hercus Pty Ltd (supra) I am satisfied the award does apply to these employees.

17.Historically it is clear that the exemption from the award only applied to drivers who had the contract to deliver mail, not their employees as demonstrated in the 1910 Award.  I am able to interpret the present clause in the light of its history (Jordan (supra)).

18.The award could have specified “drivers employed by contractors” if the drivers in this case were not to be covered by the award.

19.The construction I have placed on the term “mail contractors” is a generous one which has the effect of including the workers in the award.  This is appropriate interpretation (Jordan (supra)). 

The effect of Work Choices on the state award

20.The Applicant sets out in the submissions how the original state awards are preserved under Work Choices and I accept those submissions which were not challenged by the Respondents.

21.The minimum basic periodic rates of pay required to be paid to the relevant employees under the Award preserved Australian Pay and Classification Scale (APCS) is

Classification	APCS Base Rate 27/3/06	APCS Base Rate 27/3/06 plus 23% casual loading	APCS Base Rate 01/12/06	APCS Base Rate 01/12/06 plus 23% casual loading
Grade 2	$533.52/week $14.04/hour	$17.2692/hour	$560.88/week $14.76/hour	$18.1548/hour

The hours worked by Miller and Wolfenden

22.The Respondents dispute the hours worked by employees Miller and Wolfenden.  Suzanne Miller gave evidence in an affidavit that was filed on 14 November 2007.  She was cross examined by the Second Respondent.  Her evidence in chief was that she worked an average of 36 hours per week.  She says she was only paid for between 12 and 20 hours each week.  She was cross examined and counsel for the Applicant conceded after her cross examination that 36 hours was not open on her evidence under cross examination.  The Applicant altered the claim to 34 hours.

23.I accept Ms Millers evidence.  She was a credible witness.  Mr Houston’s method of calculating the wages did not at any stage take into account the actual hours that Ms Miller worked but rather he calculated her wage on the basis of the number of parcels she delivered.  He conceded in cross examination that he was not always in the shed when workers returned so he is not in a position to give evidence contrary to that of Ms Miller.  I find Ms Miller worked an average of 34 hours per week.  She worked those hours between 27 March 2006 and 12 April 2006.  The period of her employment is conceded.  The amount she is owed is $1064.60.

24.Allan Wolfenden gave evidence in an affidavit filed on 22 November 2007.  He was cross examined by the Second Respondent.  His evidence in chief in paragraph 3 of his affidavit was:

“My hours of work while employed by RWH varied and ranged from 20 to 40 hours per week.  I was only paid for between 10 and 18 hours for the period up to 28 March 2007”

25.He commenced his employment as a courier driver on 5 March 2007.  The Applicant is only claiming 20 hours per week, the lower end of the range of hours Mr Wolfenden swears he worked.

26.I accept Mr Wolfenden’s evidence.  He was a credible witness.  I accept his evidence because the Respondent used the same method to calculate Mr Wolfenden’s wages as Ms Miller’s.  This did not accurately reflect how many hours he worked but rather relied on the number of parcels he delivered.  He was not challenged in cross examination that he actually worked less than 20 hours per week.  This is no doubt because Mr Houston had no record of the actual hours worked by Mr Wolfenden because of the way the respondents calculated the hours employees worked.  This was based on the number of parcels delivered.

The payments to Aldworth and Turner

27.The First and Second Respondents dispute the claims on behalf of Donna Turner and Tracey Aldworth on the basis that they received part of their wages “cash in hand”.  Mr Houston’s evidence on this point is at paragraph 32 and 33 of his evidence in chief.  He says:

“32.  Donna and Tracey also say in their affidavits that they worked for more hours than they were paid.  This is incorrect.  Donna and Tracey were paid for every hour they worked, based on the parcel rate and any other duties they performed, such as sorting mail items or washing the delivery vans.  However, a certain amount of hours were recorded “in the book” and the balance of hours was paid “cash in hand”.  The “cash in hand” component of Donna and Tracey’s wages was paid from my own after tax income.  This was done to assist Donna and Tracey, who both received Centrelink benefits.

33.    The time and wages records that I initially provided to the Workplace Ombudsman in respect of Donna and Tracey were incomplete.  The complete records show that Donna and Tracey were paid for more of hours of work than they state in their affidavits.  I did not initially provide the complete records because I did not want anyone to get into trouble with Centrelink.  However, on 23 November 2007 my lawyers, Hopgood Ganim Lawyers, provided the Applicant’s lawyers with copies of the complete records and informed them of the matters described in paragraph 32 above.  A true copy of this letter and the complete records is attached as “Annexure RH3” to this Affidavit.”

28.Ms Aldworth and Ms Turner were cross examined by the Second Respondent.

29.Ms Aldwroth in her evidence in chief filed 14 November 2007 says at paragraph 4:

“My hours of work while employed by RWH varied and averaged between 25 and 30 hours per week.  I was only paid for 10 hours per week.”

30.She was not challenged in cross examination about receiving Centrelink benefits.  Ms Aldworth was challenged about the cash payments.  Mr Houston said:

“Well Mrs Aldworth, I put it to you that, yes, you did work 30-25/30 hours a week and that you did get paid the 10 hours a week and the rest of the money that you were paid for was cash in hand money?”

31.Ms Aldworth replied:

“No, I didn’t get it”. (Transcript page 56)

32.I accept Ms Aldworth’s evidence on that point. I accept the business records the Respondent relied on initially and reject the evidence he seeks to adduce in the second set of books he produced to the Applicant. I accept his original business records because a Court is entitled to assume that any business records kept and subsequently presented accurately reflect the business operation. Hence the business records exception to hearsay in the Evidence Act (Cth).

33.I am fortified in my conclusion because the Respondents did not put to Ms Aldworth that she was receiving the benefits nor did they produce evidence of this, something they could have done.

34.Ms Turner in her evidence in chief filed 14 November swears at paragraph 4:

“My hours of work while employed by RWH varied and averaged between 12 and 15 per week.  I was only paid for seven hours per week.”

35.Ms Turner was not challenged in cross examination about receiving Centrelink benefits.  It was put to her about additional cash payments:

“So Ms Turner, you never actually received any cash in hand payments?”

“My $70.00, that’s all I received.” (Transcript page 76)

36.Ms Turner also denied receiving “pay for any of your fuel privately” or “pay for any of our childcare payments?” (Transcript page 76)

37.I accept Ms Turners evidence on that point and reject the second set of books the Respondents seek to adduce for the same reasons I set out in the reasoning in Ms Aldworth’s case.

Underpayment of wages and casual loading to employees

38.The Applicant seeks an order under s.719(6) of the Act that the First and Second Respondents be jointly and severally liable for the payment to the employees who are the subject of this claim. The applicant at page 14 of her submissions sets out a table of the amounts that the First Respondent underpaid each person. Rate 1 is the appropriate rate given the finding I have made that the award applies. The amounts that are shaded in the table represent the amounts the second respondent paid to the employees on 7 January 2008.

39.I understand all of the amounts in this table are agreed to by the Respondents except the disputed hours of Turner, Aldworth, Miller and Wolfenden.  The additional amounts in those employees columns represent the disputed amounts that I have made findings about.  All of the figures in the table are correct except Ms Miller’s figures.  Ms Miller’s total figure should be $1,064.60 not $1,154.40 as appears in the table.

40.I reproduce the table here which sets out accurately the amount owing to each employee except in the case of Suzanne Miller.

Employee Name	27/3/06 to 31/11/06		1/12/06 to 28/03/07			Total for employee
	Rate 1	Rate 2	Rate 1	Rate 2		Rate 1		Rate 2
Donna Turner	$1,821.66 plus $3,091.19	$528.77 plus $2,167.69	$388.17 plus $617.26	$165.17 plus $457.98		$5,918.28		$3,319.61
Donna Taylor	$814.15	$236.32	$717.62	$305.36		$1,531.77		$541.68
Melissa O'Sullivan	$814.15	$236.32	$685.00	$291.48		$1,499.15		$527.80
Kylee Slater	$2,602.37	$755.38	$1,370.00	$582.96		$3,972.37		$1,338.34
Jessica Austin	$552.45	$160.36	$0.00	$0.00		$552.45		$160.36
Jade Taylor	$2,895.87	$311.11	$2,141.87	$80.52		$5,127.74		$391.63
Tracy Aldworth	$407.08 plus $1,450.61	$118.16 plus $1,017.21	$0.00	$0.00		$1,857.69		$1,135.40
Employee Name	27/3/06 to 31/11/06		1/12/06 to 28/03/07			Total for employee
	Rate 1	Rate 2	Rate 1		Rate 2	Rate 1	Rate 2
Alison Hatherly	$0.00	$0.00	$489.29		$208.20	$489.29	$208.20
Dianne Leek	$69.78	$20.26	$0.00		$0.00	$69.78	$20.26
Carmen Longmuir	$232.61	$67.52	$880.72		$374.76	$1,113.33	$442.28
Trudy Lowe	$1,715.53	$497.96	$0.00		$0.00	$1,715.53	$497.96
Suzanne Miller	$335.84 plus $818.56	$97.48 plus $574.01	$0.00		$0.00	$1154.40	$671.49
Monique Thorogood	$0.00	$0.00	$375.12		$159.62	$375.12	$159.62
Renee Portious	$1570.15	$455.76	$0.00		$0.00	$1,570.15	$455.76
Allan Wolfenden	$0.00	$0.00	$181.13 plus $381.25		$187.60	$562.38	$187.60
Racheal Gudmann	$0.00	$0.00	$76.87		$0.00	$76.87	$0.00
GRAND TOTALS	$27,586.30	$10,057.99

Conclusion

41.The original State Award applies to these employees for the reasons set out herein.

42.Susan Miller and Allan Wolfenden worked more hours than are set out in the wage sheets provided by the Respondents.  Ms Miller worked 34 hours each week and Mr Wolfenden worked 20 hours each week.

43.Ms Aldworth and Ms Turner were not paid separate cash payments for additional hours they worked as alleged by the Respondents.

44.I will adjourn the matter to allow the Applicant to prepare draft orders to reflect my reasons and adjourn the submissions on the penalty that should be imposed on the Respondents.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Cassidy FM

Associate:  C. Lasslett

Date:  18 April 2008