Mantarakis v Transit Systems West Services Pty Ltd
[2020] FCCA 2014
•30 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANTARAKIS v TRANSIT SYSTEMS WEST SERVICES PTY LTD | [2020] FCCA 2014 |
| Catchwords: INDUSTRIAL LAW – Small claim under the Fair Work Act – interpretation of award – contravention established in relation to an annual leave entitlement. |
| Legislation: Fair Work Act 2009 (Cth), ss.545, 548, 566, 570, 716AI. Federal Circuit Court Rules 2001 |
| Cases cited: James Cook University v Ridd [2020] FCAFC 123. |
| Applicant: | GEORGIOS MANTARAKIS |
| Respondent: | TRANSIT SYSTEMS WEST SERVICES PTY LTD |
| File Number: | SYG 2209 of 2019 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 24 March 2020 |
| Date of Last Submission: | 27 April 2020 |
| Delivered at: | Wollongong |
| Delivered on: | 30 July 2020 |
REPRESENTATION
| The Applicant in person | |
| Solicitors for the Respondent: | Mr Radmilovic of Transit Systems West Services |
DECLARATIONS
The Respondent contravened the following:
(a)Clause 67.3 of the State Transit Authority Bus Operations Enterprise (State) Award 2018 by failing to pay the Applicant public holiday pay in the amount of $223.62; and
(b)The Superannuation Guarantee (Administration) Act 2012 (Cth), by failing to pay the Applicant superannuation entitlements in the amount of $21.24.
ORDERS
In accordance with s.545(2) of the Fair Work Act 2009 (Cth), the Respondent pay to the Applicant the following within 28 days of the date of this Order:
(a)The sum of $223.62, being the amount as calculated in Order 1(a) above less any applicable tax;
(b)Superannuation entitlements in the sum of $21.24, such amount to be paid directly into the Applicant’s nominated superannuation fund; and
In accordance with s.570 of the Fair Work Act 2009 (Cth), the Respondent pay to the Applicant the sum of $240, being the filing fee incurred by the Applicant within 28 days.
All outstanding applications be otherwise dismissed and the matter removed from the list of cases awaiting finalisation.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2209 of 2019
| GEORGIOS MANTARAKIS |
Applicant
And
| TRANSIT SYSTEMS WEST SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment explain the orders that the Court has made in a dispute between the Applicant and his employer, the Respondent.
Background
The Applicant is a bus operator i.e. a bus driver. He is employed by the Respondent at its Tempe bus depot in Sydney. He commenced working on 1 July 2018 and indeed continues to work with the Respondent as a full time bus driver.
It is common ground that the Applicant was employed pursuant to the provisions of the State Transit Authority Bus Operations Enterprise (State) Award 2018 (hereafter referred to as ‘the Award’). This award is a copied state award for the purposes of s716AI Fair Work Act 2009 (Cth) (hereafter referred to as ‘the Act’). This Court has jurisdiction under s566 of the Act. The claim is brought pursuant to the provisions of s548 of the Act which establishes a small claims procedure. Section 548(3) of the Act states that in small claims proceedings, the Court is not bound by any rules of evidence and procedure and may act in an informal manner, and without regard to legal form and technicalities. The Court may not award more than $20,000. The Federal Circuit Court Rules 2001 also contain provisions about the conduct of small claims.
The five components to the Applicant’s claim are as follows:
(1)Underpaid wages
(2)Underpaid overtime
(3)Unpaid public holiday
(4)Underpaid superannuation
(5)Costs, being the filing fee of the application.
No formal response was filed by the Respondent, but it is clear from the documents they filed that they opposed the Applicant’s claim.
The Applicant represented himself but appeared to have access to quite a high level of expert advice in relation to his advice. The Respondent was represented by its in-house legal counsel.
The evidence before the Court
In the Applicant’s case, he relied on the following documents;
a)Small Claim Application filed 27 August 2019;
b)Affidavit of Georgios Mantarakis filed 27 August 2019; and
c)Outline of Submissions in Reply filed 27 April 2020.
In the Respondent’s case, they relied on the following documents;
a)Response filed 8 October 2019;
b)Further Submissions in Response filed 21 April 2020; and
c)Affidavit of Mark William Peters filed 17 March 2020.
The applicable law
The dispute between the parties is governed by the provisions of the State Transit Authority Bus Operations Enterprise (State) Award 2018. The relevant provisions will be discussed in the context of the issues raised. The Full Court of the Federal Court in James Cook University v Ridd [2020] FCAFC 123 has recently restated the relevant principles that guide the interpretation of awards and enterprise agreements. At paragraph 65 the Court states:
[65] The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:
(i) The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).
(iii) Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175, 178).
(iv) Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(v) Recourse may be had to the history of a particular clause “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 its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).
(vi) A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “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” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).
(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).
The claim for underpaid wages
In the Applicant’s material he contends that his income declined as a result of the transfer of the bus operations from his former employer, the State Transit Authority, to his current employer, the Respondent. He explains for example, that in the financial year 2017-2018 his gross earnings were $98,765.87 but in 2018-2019, when his employment was transferred to the Respondent, his gross earnings reduced to $92,816.73, despite the fact that the Award provided for a 2.5% increase to his hourly rate. He sets out quite detailed evidence and calculation demonstrating the decline in his income as between the two years. The Applicant himself identifies that part of the reduction in his income (indeed, the Court notes most if not all of it) was due to the fact that he had not been rostered to work the same amount of public holidays and Sundays as he had in the previous year. The Applicant makes this important concession in his material: “Of course, transit systems did not have to roster me to work these days…”
The basis of the Applicant’s claim in relation to wages is Clause 17 of the Award which states as follows:
Clause 17. Income Protection
(17.1) There will be no roster changes made solely for the purpose of reducing the take home pay of employees covered by this Award.
(17.2) No shift changes will result in a loss of take home pay of more than two percent over a twelve month period (based on a financial year), below the average pay of each shift type, e.g.: AM, Day, Midday, Broken and PM shifts, except for part time rosters. For the avoidance of doubt, shift changes shall include both major and minor shift changes.
(17.3) Subclause 17.2 will not apply for school vacation, university vacation, university exam period or changes required due to variations in road conditions by relevant authorities or where it is necessary to introduce short term temporary timetables - for example, closure of rail line, office vacation etc.
(17.4) To ensure compliance with the provisions of this clause, at the commencement of each financial year, State Transit will provide the RTBU with a summary (the Annual Summary) of all rosters for employees covered under this Award, for all locations.
(17.5) The Annual Summary will then be used as a baseline for the purpose of calculating the total impact on average take home pay of any shift changes which occur in the following twelve month period to 30 June.
The difficulty with the Applicant’s claim on this issue is that it is quantified by reference to his rosters and thus his wages. He contends, for example, that he worked more ordinary days in the financial year 2018-2019 and thus the average daily paid hours were significantly less. But as the Applicant himself concedes in his material, clause 17 of the Award, and particularly clause 17.2, refers to: “..the average pay of each shift type..”, and not the average pay of each employee. This interpretation is strengthened by reference to clause 17.4 which requires the Respondent to provide to the Applicant’s union, the Australian Rail, Tram and Bus Industry Union (Bus and Tram Division), at the commencement of each financial year with all rosters for employees covered under the Award for all locations.
The Respondent contended that the Applicant was being paid strictly in accordance with the Award as the average pay of each shift type had not been reduced by more than 2%, in accordance with clause 17.
In his Outline of Submissions in reply filed 27 April 2020, the Applicant states at paragraph 5.7:
[5.7] “My calculations are based on the shifts allocated to me because the Respondent diligently concealed vital information in regard to rosters. Information that I repeatedly asked for, during the financial year 2018-2019, but was refused.”
It is clear therefore that even the Applicant understood that the income protection provisions found in clause 17 of the Award were based on the average pay of each shift type, and not his average pay. He is clearly concerned that he was not provided with the information referred to in clause 17.2 but it should be noted the obligation on the Respondent pursuant to clause 17.4 is to provide this information to the Applicant’s union, not to the Applicant.
Given that the Applicant himself concedes, quite properly, that his employer did not have to roster him to work on public holidays and Sundays, and having regard to the fact that the clause 17 requirements have not been established, it must follow that the Applicant’s claim for wages is not established.
Overtime
The Applicant contends that as he was a full time employee on a 6 day roster, on 152 hours of work in a full week cycle excluding Sunday, the provisions of clauses 17.1 and 27.3.3 of the Award stipulates the basis for his pay. He contends that this means that he should be paid a minimum payment of 38 hours per week exclusive of penalty allowances, that ordinary hours of duty are capped from what is considered as overtime, and that payment be on an averaging basis of 76 ordinary hours a fortnight. He contends that clause 30.3 stipulates what is considered as overtime and it gives three alternatives for the calculation and clearly states that overtime should be calculated on whichever alternative gives the greater amount. Thus, he contends, each week should be calculated separately and depending which alternative gives the greater amount, that specific alternative should be applied and used.
The relevant provisions of the Award in this regard appear to be clauses 27.1, and 27.3 (specifically 27.3.3) and clauses 30.1 and 30.3:
Clause 27. Hours of Work
(27.1) Subject to the provisions of this clause, a Full Time Employee shall be entitled to a minimum payment of 38 hours per week exclusive of penalty allowances.
(27.3) Employees on a Six Day Roster:
(27.3.1) The provisions of this subclause apply to all full-time employees covered under this Award, except those covered under subclause 27.4.
(27.3.2) Except as provided in 27.3.3, the ordinary hours of duty of each weekly period, excluding Sunday, shall be 38 hours divided into not more than five shifts.
(27.3.3) Ordinary hours of duty may be worked to provide for 152 hours work in a four week cycle, excluding Sunday. This enables employees to have one day off duty during that cycle by accruing additional working time on other working days. Such hours to be arranged within shift limits specified in 27.5. Payment in these circumstances to be made on an averaging basis of 76 ordinary hours a fortnight.
Clause 30. Overtime
(30.1) Subject to sub-clause 30.2 an employer may require an employee to work reasonable overtime at overtime rates.
(30.3) All time worked:
(i) in excess of eight hours fifteen minutes in any shift or in excess of 38 hours in any week; or
(ii) time worked in excess of 40 hours in any week when five shifts are worked; or
(iii) in excess of 32 hours in any week when four shifts are worked, when such hours are worked on the basis of 152 hours/nineteen shifts in a four week work cycle, shall stand alone and be paid for at the rate of time and a half for the first three hours and double time thereafter. Payment for overtime shall be calculated upon whatever alternative gives the greater amount.
It seems that the substance of the Applicant’s claim is that he worked overtime hours which had been incorrectly paid as ordinary time. The Respondent contends however that all that was occurring was that the Applicant worked additional hours in order to accrue an accrued day off (ADO) which was taken at the end of each four week roster cycle. The Applicant seems to contend that the additional hours worked to accumulate an ADO attracts overtime, but the Respondent says to the contrary. The Respondent says that as the Applicant received an ADO for the additional time worked, he is compensated for the additional hours worked. Absent the Applicant working the additional hours, the Applicant would have had to work the additional day, and thus be paid for that day at the ordinary rate.
The Applicant’s evidence establishes that he typically worked 8 hours but was only paid for 7 hours and 36 minutes. In a four week cycle, this meant that he worked 19 days for 8 hours. But for each day at work, he accrued 24 minutes of time which was taken as an ADO on the 20th day of the four week roster.
The Applicant contends that the final sentence in clause 30.3(iii) means that he should have been paid overtime for, in effect, the 24 minutes extra that he worked each day. In short, he worked two extra hours each week, i.e. 40 hours, instead of the 38 hours referred to in clause 30.3(i).
The difficulty the Court has with the Applicant’s contention is that, if accepted, he would be entitled to overtime as well as the rostered ADO instead of what seems to have been intended by the Award, i.e., that the additional hours worked to accumulate an ADO do not attract the overtime rate of pay. Clause 30.3 of the Award can only be read in light of clause 27.3.3 in the Applicant’s case. Having regard to the wording of that clause, provided the Applicant’s hours were arranged within the shift limits specified in clause 27.5 (and there seems no issue about this), he accrued one day off during that four week cycle at ordinary rates, not the overtime that he contends for. A common sense interpretation of the Award needs to take place otherwise employers would logically need to reconsider accrued day off and similar arrangements. The Court notes the Applicant’s detailed submission about how the 2 clauses should be interpreted (contained in his Outline of Submissions filed 27 April 2020) but does not agree. It is, with respect, an illogical and not a plain common sense interpretation of the clauses of the Award.
It follows that the Applicant’s claim in relation to overtime fails.
Unpaid public holiday
The Applicant contends that he was entitled to be paid for Easter Saturday on 20 April 2019 because he is a full time employee on a six day roster and Saturday is an ordinary day for him. He contends that he was not paid in accordance with the Award.
The relevant provisions of the Award are clauses 66.1 and 67, specifically 67.3 as set out below:
Clause 66. Public Holidays
(66.1) The days on which New Year’s Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Anzac Day, Queen’s Birthday, Labour Day, Christmas Day and Boxing Day are proclaimed, shall be recognised as Public Holidays, in addition to:
(i) special days appointed by proclamation as Public Holidays to apply throughout the whole State;
and
(ii) where applicable, special days appointed by proclamation as Public Holidays but limited to a specific geographical region of the State.
Clause 67. Work on a Public Holiday
(67.1) An employee required to work on a Public Holiday which falls on Monday to Friday shift shall be paid at time and one half for all time worked on the Public Holiday. All time worked on a Public Holiday which falls on a Saturday shall be paid at the rate of double time.
(67.2) In addition to the penalty rate prescribed in 67.1 above, an employee who works on a Public Holiday will also be entitled to a payment equivalent to the ordinary hours, which the employee actually works on the Public Holiday, up to a maximum of 7.6 hours (the "Additional Payment"). Employees who work less than 7.6 hours per day will be entitled to the Additional Payment on a pro rata basis.
(67.3) A full-time employee who ordinarily works on a day on which a Public Holiday is proclaimed, but is rostered off, will be entitled to the Additional Payment based on the ordinary hours, which the Employee would have worked, but for the rostered day off, up to a maximum of 7.6 hours.
The Applicant contends that the additional payment owed to him is 7.6 hours at $29.424 equals $223.62. He contends that this amount does attract the 9.5% superannuation contribution of $21.24.
The Respondent does not respond to this contention in its submissions dated 8 October 2019 and 21 April 2020.
The Court accepts the Applicant’s contention that pursuant to clause 67.3 he was a full time employee who ordinarily worked on a public holiday as referred to in clause 66.1, but was rostered off. He is entitled to the additional payment based on ordinary hours which he would have worked, but for the rostered day off, up to a maximum of 7.6 hours. By not paying him, the Respondent contravened clause 67.3 of the award.
Costs
The Applicant claims $240, presumably pursuant to the provisions of s570 of the Act, the $240 is the filing fee he paid on the application.
Section 570 of the Act states:
S570. Costs only if proceedings instituted vexatiously etc.
(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569.
Note: The Commonwealth might be ordered to pay costs under section 569.
(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before FWA;
(ii) the matter arose from the same facts as the proceedings.
The failure on the part of the Respondent to address the successful component of the Applicant’s claim, namely in relation to Easter Saturday 2019, is surprising and the Court can only infer that it had nothing to say on the matter. Accordingly, the Court is satisfied that both the non-payment and the failure to address the Court as to the non-payment constitutes an unreasonable act. The Respondent should pay to the Applicant the sum of $240 within 28 days. The fact that the Applicant was unsuccessful in relation to other aspects of his claim is irrelevant, for present purposes.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 30 July 2020
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