Mantarakis v Transit Systems West Services Pty Ltd

[2021] FCCA 1041

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mantarakis v Transit Systems West Services Pty Ltd [2021] FCCA 1041

File number(s):	SYG 2888 of 2020
Judgment of:	JUDGE STREET
Date of judgment:	14 May 2021
Catchwords:	INDUSTRIAL LAW – whether the applicant has been paid appropriately under the award for overtime work – application dismissed.
Legislation:	Fair Work Act 2009 (Cth) ss 566,  570
Number of paragraphs:	12
Date of hearing:	14 May 2021
Place:	Sydney
Counsel for the Applicant:	In person
Counsel for the Respondent:	Mr B Radmilovic

ORDERS

SYG 2888 of 2020

BETWEEN:

GEORGIOS MANTARAKIS

Applicant

AND:

TRANSIT SYSTEMS WEST SERVICES PTY LTD

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	14 MAY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application in the Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“the Act”) in which the applicant brings a small claim in proceedings concerning overtime.  The applicant in substance contends that he has been underpaid overtime by the respondent since his employment commenced as a bus operator in 2018.  The applicant relies upon the provisions of the State Transit Authority Operations Enterprise State Award 2018 (“the Award”) which has provisions dealing with relevantly, wages and related matters as well as hours of work, breaks, overtime, and shift work. 

2. The hours of work are identified in cl 27 of the Award and the overtime is identified in cl 30 of the Award.  The rosters are dealt with in s 6 of the Award, and there are also provisions concerning leave and public holidays, and there are tables in relation to the wage rates. The applicant in his first affidavit has prepared detailed calculations by reason of which he alleges he has been underpaid since June 2019 an amount of $1141.44.  In summary, the applicant contends that the respondent calculated overtime by application of cl 30.3(i) of the Award without performing the alternative calculations that might be carried under (ii) and (iii) of the Award in determining the amount to be paid at the rate of time and a half for the first three hours, and then double time thereafter. 

3. The applicant has provided affidavit evidence in which he has set out his payslips and identified the hours worked in respect of weeks which include high rates of pay for the shifts on a weekly basis that include Saturdays and Sundays.  It is also apparent in relation to each of the payslips that the applicant has broken shift penalties that have been paid in respect of the payslips for the applicant.  The respondent contends that as a result of the broken shift penalty payments, the applicant is in substance seeking to recover more than double time in respect of the overtime calculations that the applicant has performed in his assertions as to the time that he alleges supports his claim for a shortfall of overtime. 

4. The applicant’s calculations are supported by tables and graphs in which the applicant has obviously put in an enormous amount of effort to identify the basis upon which he contends alternative calculations might give rise to a greater amount payable. Those tables do not however take into account the penalty shift overtime and the respondent’s double time payment above the Award for the first three hours. The respondent has put on affidavit evidence from Ms Byers, the area manager for the respondent, which makes reference to the award and the types of shifts worked by the applicant and identifies that for the majority of shifts, the applicant has already been paid overtime at a higher rate of double time and that the Award is the subject of a cap in relation to paying more than double time and contends that the applicant has been correctly paid. 

5. An affidavit has also been put on, on behalf of the respondent by Mr Peters, the general manager of fleet and innovation. Mr Peters’ affidavit identified that the applicant primarily worked broken shifts or split shifts and that in no circumstances was he paid less than his entitlement under the Award. Furthermore, it identifies that the applicant was paid in accordance with the State Transit payroll manual where he was paid double time for all overtime worked on a broken shift and that this is in excess of his award entitlement which states that overtime shall be paid at the rate of time and a half for the first three hours and double time thereafter. 

6. It is in those circumstances that the respondent contends the applicant’s claims and calculations are, in effect, to get him a benefit in excess of double time.  The Court accepts the respondent’s contention in that regard, supported by the evidence of the respondent and accepts the affidavit of Mr Peters in relation to the calculation applied for determining the applicant’s pay. The Court does not accept the calculations and methodology adopted by the applicant which fails to take into account the over award payments. The Court does not accept the applicant’s evidence as to underpayment of overtime under the Award. It is apparent that there have been communications between the parties about the calculations and the applicant’s methodology. The Court prefers and accepts the respondent’s methodology.

7. The applicant has earlier sought to agitate unsuccessfully proceedings in this Court, where the applicant’s overtime claim was rejected by Judge Altobelli.  The applicant’s claims appear to have been in substance similar, however the amount the applicant is now seeking appears to relate to a different time period.  Whilst the Court is concerned that the applicant is seeking to re-agitate matters that have been determined in earlier Court proceedings, the Court accepts as a small claims matter that the subject matter of the applicant’s claim in terms of the overtime appears, in fact, for a different period.  The applicant also contends that his complaints are different because of taking into account the accrual of a rostered day off, and given that the time period is different. The Court does not find that these proceedings are an abuse of process seeking to re-agitate the same cause of action that was agitated and determined before Judge Altobelli. 

8. However, the Court does not accept the applicant’s contention that his calculations reflect a correct application of cl 30.3 of the Award or of the Award as a whole. This is because it fails to take into account the whole of the double time payments made to the applicant and fails to properly take into account the broken shift overtime payments.

9. Evidence has also been put on by the respondent by Ms Tania Votta, the payroll manager for the respondent, who maintains the applicant has been paid correctly and in accordance with the award. It is apparent that the applicant has been paid for all time worked in excess of eight hours and 15 minutes at 200 per cent.  In those circumstances, the applicant’s calculations are ones where the Court accepts the respondent’s evidence that the applicant is seeking to obtain more than double time.  Accordingly, the Court finds the applicant is not entitled to the overtime claimed in these proceedings. 

10. There was an issue relating to a holiday pay, but that has been withdrawn.  On no view is the applicant entitled to any order for costs. 

11. The ordinary consequence in respect of proceedings in this Court is that there should be no order as to costs, as the Court has found that the proceedings are not ones in respect of which there is a re-agitation of a determined issue amounting to an abuse of process. Subject to hearing from the respondent, the Court is not minded to make any costs order because it is not satisfied there has been any unreasonable conduct by the applicant so as to depart from the standard position of each party bearing their own costs under s 570 of the Act. 

12. Accordingly, the application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 14 May 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       26 May 2021