Lynch v M and G Property Group Pty Ltd

[2013] FCCA 1023

FEDERAL CIRCUIT COURT OF AUSTRALIA

LYNCH v M & G PROPERTY GROUP PTY LTD [2013] FCCA 1023

Catchwords:
INDUSTRIAL LAW – Small claim – dispute as to award applicable to the applicant’s employment – further dispute about how applicant should be classified – finding that applicant should be classified as a Property Sales Associate pursuant to Real Estate Industry Modern Award – finding of three contraventions: underpayment of hourly rate; underpayment of public holiday rates; and, failure to pay correct amount for accrued annual leave.

Legislation:

Fair Work Act 2009 (Cth), ss.548, 548(1A) & (2), subss.87(1), 90(2) and 114(1)
Real Estate Industry Modern Award, cl.14.1 and 25.4

Applicant: JESSICA LYNCH

Respondent: M & G PROPERTY GROUP PTY LTD T/AS MAWSON LAKES REALTY

File Number: ADG 300 of 2011

Judgment of: Judge Simpson

Hearing dates: 4 May, 20 July 2012

Date of Last Submission: 20 July 2012

Delivered at: Adelaide

Delivered on: 12 August 2013

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. The respondent shall forthwith pay the applicant the sum of SIX THOUSAND, THREE HUNDRED AND NINETY SIX DOLLARS AND FORTY FOUR CENTS ($6,396.44) inclusive of prejudgment interest.

2. All extant applications are dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 300 of 2011

JESSICA LYNCH

Applicant

And

M & G PROPERTY GROUP PTY LTD T/AS MAWSON LAKES REALTY

Respondent

REASONS FOR JUDGMENT

1. I have before me an application brought by Jessica Lynch (“the applicant”), the former employee of the respondent M & G Property Group Pty Ltd (“the respondent”).

2. The applicant claims that the respondent contravened the following industrial instruments:

   ·    “A term of a Modern Award, namely the Real Estate Industry Award;

   ·    A national minimum wage order, namely Clerks SA Notion (sic); and

   ·    The Clerks SA Notional Agreement Preserving State Award.”

3. The applicant’s Form 5 does not provide any further particulars of the contraventions alleged.

4. The applicant seeks that the matter be dealt with as a small claim under s.548 of the Fair Work Act 2009 (“the Act”). I am satisfied that it is appropriate for me to do so. Section 548 provides that proceedings are to be dealt with as small claims proceedings under this section if:

   “a)A person applies for an order … under Division 2 from the Federal Magistrates Court; and

   b)The order relates to an amount referred to in subsection 1(A); and

   c)The person indicates, in a manner prescribed by the regulations or by the rules of the Court, that he or she wants the small claim procedure to apply to the proceedings.”

5. The monetary limitation provided for small claims requires that the Court not award more than $20,000.

6. In her Form 5, the applicant claims the sum of $4,098.46 for unpaid wages; $1,749.23 for unpaid leave; $3,528.56 being for “interest earned/6 months of having to wait for the payment/pain and suffering incurred”; and the sum of $123.75 in relation to public holidays. The total claimed is therefore the sum of $9,500 and is therefore within the monetary limitation provided for in s.548(1A) and (2).

7. As this is a small claim, the Court is not bound by any rules of evidence or procedure and may act in an informal manner and without regard to legal forms and technicalities.

8. Neither party sought leave to be represented by a lawyer.

9. Notwithstanding that this matter was dealt with as a small claim it has all the hallmarks of substantial litigation.  The applicant in particular has provided the Court with an extensive amount of written material.  This includes affidavits, a ‘book’ of submissions running to 41 pages together with a list of authorities and copies of 3 cases to be referred to.  The respondent’s documents include affidavits, submissions and a list of authorities which are of somewhat more modest proportions.

10. In the spirit of the provisions of the small claims procedure, before hearing any sworn evidence, I allowed the parties to explain what their positions were in an attempt to try to resolve the matter without the need for evidence and a judicial decision.  Unfortunately, those efforts were unsuccessful.

11. The applicant gave evidence and was cross-examined by the representative of the respondent, Mr Mastrogiacomo.  For convenience I will refer to Mr Mastrogiacomo also as the respondent.

12. The respondent called Megan Paula Hewett, an inspector with Fair Work Australia.  The respondent also called Melissa Josephine Young, a property manager in the employ of the respondent.  Each of the witnesses was cross-examined.

13. The material provided by the parties includes documents from the office of the Fair Work Ombudsman (“FWO”).  The applicant lodged a complaint against the respondent with the FWO on 20 June 2011. The FWO carried out a thorough investigation after which, on 14 October 2011, it made a determination that there had been 4 contraventions by the respondent.  The FWO suggested that the respondent should pay the applicant the sum of $6,277.55.  The FWO’s explanation as to how this sum was arrived at was as follows:

    “(1)Clause 14.1 of the Real Estate Industry Modern Award provides for minimum weekly wages. Payroll records indicate Jessica Lynch was paid the rate of $15.20 per hour from the commencement of her employment on 10 June 2010, until the cessation of her employment of 27 May 2011.  This has resulted in an underpayment of hourly rate totalling $4,098.46 gross.

    (2)Subsection 114(1) of the Fair Work Act 2009 provides that where an employee’s ordinary hours of work are to be worked on a day that is declared a public holiday, the employee is entitled to the benefits of the public holiday. Payroll records show that Jessica Lynch was not paid for the day deemed a public holiday on 14 June 2010. This has resulted in an underpayment totalling $123.75 gross.

    (3)Subsection 87(1) of the Fair Work Act 2009 provides an employee (other than a casual) is entitled to four weeks paid annual leave for each year of service. Annual leave accrues progressively during the year based on employee’s ordinary hours of work, and is cumulative.

    Payroll records indicate at the time of Jessica Lynch’s cessation of employment, she was entitled to payment for annual leave accrued during the term of her employment. Records show Jessica Lynch’s annual leave accrual was not recorded on a regular or systematic basis, however, records did disclose that Jessica Lynch undertook a period of 52.5 hours annual leave commencing 29 December 2010.

    Calculations show that Jessica Lynch was entitled to payment for 103.75 hours of accrued annual leave at the rate of $16.86.  This is the rate that would have been payable at the time employment ceased, resulting in an underpayment of $1,749.23 gross.

    (4)Clause 25.4 of the Real Estate Industry Modern Award provides for annual leave loading. Specifically, during a period of annual leave the employee will receive a loading of 17.5% calculated on the minimum weekly wage for the employee’s classification under this award.

    Further, subsection 90(2) of the Fair Work Act 2009 provides if, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

    Calculations show that Jessica Lynch was entitled to payment for annual leave loading proportionate to the accrued, but untaken leave amount totally 103.75 hours.  An underpayment has been calculated totalling $306.11 gross”.

14. The FWO revisited the assessment and on 31 October 2011 made a second determination to replace the first.  The officer with the conduct of the matter for the FWO decided that contraventions 1, 2 and 3 above were correct but that contravention 4 was not made out. As a result, the FWO decided that the $306.11, as identified in contravention 4, did not have to be paid.  The officer suggested that the sum of $5,971.44 was all that the respondent had to pay.

15. The applicant provided the court with a copy of a very helpful report prepared by the FWO titled, “Report into Review of the Investigation of Workplace Complaint Lodged with the Fair Work Ombudsman by Jessica Marie Lynch” dated 19 January 2012.  The report indicated that the respondent made payments of the $5,971.44 (less tax) by electronic transfer to the applicant on 21 November 2011.  The applicant was dissatisfied with that sum.  With the intention that she would bring action in this Court, the applicant had the payment made to her by electronic transfer reversed.

16. The dispute that the applicant has with the respondent hinges on what tasks the applicant had to perform when working for the respondent as this will determine which award should apply and will determine her remuneration and how she should be classified. If the respondent and the FWO are correct the Real Estate Industry Modern Award applies and the applicant should be classified as a Property Sales Associate. If the applicant is correct the Clerks-Private Sector Award 2010 applies and she should be classified as Level 3 Clerk.

17. I have given careful consideration to the submissions that have been put by each of the parties and recognise that they both genuinely believe their respective positions to be correct.  However, having examined the ‘coverage’ provisions contained in the Clerk’s Private Sector Award and in the Real Estate Industry Award I am satisfied that the applicant’s employment by the respondent was more likely than not covered by the Real Estate Industry Award.  I find that during her employment with the respondent, the applicant undertook tasks and roles that included, but were not limited to, the following:

    ·    Entering appraisal reports from sales agents into console;

    ·    Managing the Contract Management System from sales agent leads, phone enquires, and internet leads etc for potential vendors and potential purchasers;

    ·    Managing the Conversion of Appraisal to listing consol;

    ·    Sending letters to vendors on behalf of listing agent upon listing of property;

    ·    Creating hard copy file for sales agent;

    ·    Updating sales listing whiteboards for new listings/under contract/settlements;

    ·    Book photographer, vendor and/or tenants;

    ·    Creating and building “Advertiser” ads;

    ·    Ensuring open inspection in Advertiser were also placed in line-ads page in Advertiser;

    ·    Producing property guides including weekly editing/updating;

    ·    Organising keys for sales agents opens;

    ·    Maintaining sales properties key register;

    ·    Ensuring professional marketing brochures including photos/floor plans are ready and received in office before first scheduled open;

    ·    Preparing brochures and R3 for sales agent prior to opens;

    ·    Maintaining sales accounts via console;

    ·    Tracking of sales expenditure;

    ·    Managing the conversation of listing to under contract on console;

    ·    Processing of contracts for settlement;

    ·    Preparing settlement statements;

    ·    Assist in preparation of contact/Form 1 to be sent to conveyancers;

    ·    Sending letters to vendors on behalf of the sales agent upon settlement;

    ·    Managing the conversion of settlement to sold on console;

    ·    Receiving settlement cheques from conveyancer;

    ·    Preparing settlement cheques to conveyancer;

    ·    Preparing disbursement of settlement including sales commission and advertising;

    ·    Checking sales commission are correct for sales agents as per sales contract;

    ·    Removal of sign boards; and

    ·    Filing of relevant sales documents.

18. In my opinion, her classification is Property Sales Associate.

19. As a result of the respondent’s contraventions, the respondent should pay the applicant the sum of $5,971.44 (“the sum payable”) as calculated by the representative of the FWO in her second determination. 

20. As to interest, the applicant should receive interest on the sum payable at the rate of 5% pa for the period from the date that the monies should have been paid until 21 November 2011, the date that the respondent made the payment by telegraphic transfer to the applicant (which transfer the applicant had reversed).  I fix that interest in the sum of $425.00.

21. No interest is payable on the outstanding sum between the date of the telegraphic transfer until this judgment as the applicant chose not to retain the amount provided.

22. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  12 August 2013