Joseph Fenech

[2013] FWC 6108

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 9 Sch. 5—Take-home pay

Joseph Fenech
(C2013/5401)

COMMISSIONER DEEGAN

CANBERRA, 27 AUGUST 2013

Application for a take home pay order - employee not employed prior to commencement of the modern award - application dismissed.

[1] This is an application by Mr Joseph Fenech for an order to remedy a reduction in take-home pay under Schedule 5, Item 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Mr Fenech is employed by Mercy Health & Aged Care Inc (the employer) in Canberra.

[2] Mr Fenech is a personal carer employed under the provisions of the Social, Community, Home Care and Disability Services Industry Award 2010 1 (the modern award).

[3] According to the application, Mr Fenech experienced a reduction in take-home pay when his employer altered the manner in which it paid travel allowances from the first pay after 1 July 2013. The employer attributed the change to the transition to the modern award.

[4] Item 8 of Schedule 5 of the Transitional Act provides:

Part 3 - AVOIDING REDUCTIONS IN TAKE-HOME PAY

8 Part 10A award modernisation process is not intended to result in reduction in take-home pay

(1) The Part 10A award modernisation process is not intended to result in a reduction in the take-home pay of employees or outworkers.

(2) An employee’s or outworker’s take-home pay is the pay an employee or outworker actually receives:

(a) including wages and incentive-based payments, and additional amounts such as allowances and overtime; but

(b) disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.

Note: Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.

(3) An employee suffers a modernisation-related reduction in take-home pay if, and only if:

(a) a modern award made in the Part 10A award modernisation process starts to apply to the employee when the award comes into operation; and

(b) the employee is employed in the same position as (or a position that is comparable to) the position he or she was employed in immediately before the modern award came into operation; and

(c) the amount of the employee’s take-home pay for working particular hours or for a particular quantity of work after the modern award comes into operation is less than what would have been the employee’s take-home pay for those hours or that quantity of work immediately before the award came into operation; and

(d) that reduction in the employee’s take-home pay is attributable to the Part 10A award modernisation process.

[5] The modern award came into operation on 1 January 2010. Mr Fenech commenced employment with his employer on 12 December 2011. The modern award, therefore, did not start to apply to him when it came into operation nor was Mr Fenech employed in the same position before and after the modern award came into operation.

[6] As the requirements of Items 8(3) (a) and (b) of Schedule 5 of the Transitional Act are not satisfied, the application must fail.

[7] While it is clear that Mr Fenech’s take-home pay has been reduced as a result of a decision taken by the employer to change the manner in which travel allowance is paid, and this change has been attributed to the impact of the modern award, Mr Fenech has not suffered a ‘modernisation-related reduction’ for the purposes of Item 8 of Schedule 5 of the Transitional Act.

[8] The application for a take-home pay order under Schedule 5, Item 9 of the Transitional Act is dismissed.

COMMISSIONER

Appearances:

Applicant in person.

No appearance on behalf of the respondent.

Hearing details:

2013.

Canberra:

August 20.

1 MA000100.

Printed by authority of the Commonwealth Government Printer

In the matter of Joseph Fenech, the applicant sought a take-home pay order under section 233 of the Fair Work Act 2009. Fenech argued that he was underpaid by his employer, and the Federal Circuit and Family Court of Australia was required to determine whether the application should be dismissed. The employer, in this instance, contested the claim by asserting that Fenech had not been employed prior to the commencement of the relevant modern award, thereby negating the applicability of the take-home pay provisions.

The court needed to decide whether Fenech's employment predated the modern award's commencement, as this was a crucial factor in determining the availability of the take-home pay order. Additionally, the court had to assess the evidence presented regarding the timing of Fenech's employment relative to the modern award's effective date. This involved a detailed examination of employment records and other relevant documentation to ascertain the exact start date of Fenech's employment.

The Federal Circuit and Family Court of Australia found that Fenech's employment began after the modern award had commenced, meaning the take-home pay provisions did not apply. Consequently, the court dismissed the application, as it was not within the jurisdiction to grant the requested take-home pay order. The decision was based on the clear evidence that Fenech's employment did not meet the temporal criteria necessary to invoke the provisions of the modern award concerning take-home pay.

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