MCNICHOLAS v Triptech Systems Pty Ltd
[2012] FMCA 414
•17 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCNICHOLAS v TRIPTECH SYSTEMS PTY LTD | [2012] FMCA 414 |
| INDUSTRIAL LAW – Redundancy claim under Enterprise Agreement. |
| Fair Work Act 2009, s.548 |
| Applicant: | MICHAEL MCNICHOLAS |
| Respondent: | TRIPTECH SYSTEMS PTY LTD |
| File Number: | MLG 419 of 2012 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 16 May 2012 |
| Date of Last Submission: | 16 May 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 17 May 2012 |
REPRESENTATION
| The Applicant: | In Person |
| The Respondent: | In Person |
THE COURT ORDERS THAT:
The Respondent pay the Applicant the sum of $3640.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 419 of 2012
| MICHAEL MCNICHOLAS |
Applicant
And
| TRIPTECH SYSTEMS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
An application by the Applicant for a redundancy payment came before me yesterday in the Small Claims List.[1]
[1] See s.548 Fair Work Act 2009 in respect of Small Claim hearings
I heard evidence from both the Applicant employee and a representative of the corporate employer; namely its director,
Mr Laragy.
Because of the contradictory advice received by the parties from the Fair Work Ombudsman, I reserved my decision to consider those advices after affording myself the opportunity of reading fully the enterprise agreement which governed the Applicant’s employment.[2]
I have now had the opportunity of doing so.
[2]The enterprise agreement is the “ETU and Triptech Systems Pty Ltd Enterprise Agreement 2007 – 2010. Under Clause 1 of the agreement, all current and future employees of the Respondent are bound by the agreement should they come within an identified classification.
Hereafter a statement of fact is to be taken as a finding of fact, unless the context suggests otherwise.
Background
The Respondent is a corporate entity by which Mr Laragy conducts his business as an electrician. He is the principal employee of the Respondent and it is his personal exertion and application of his skills as an electrician that is the source of the Respondent’s income, save for the employment of an apprentice at an earlier time, and later the Applicant to this proceeding.
The Respondent was successful in obtaining a contract with the Victorian Ambulance Service (the Service) to install/service the automatic opening doors on the stations of the Service.
In order for him to be allowed on site it was necessary for the Respondent to enter into an enterprise agreement with the Electrical Trades Union. He did this by executing the “ETU and Triptech Systems Pty Ltd Enterprise Agreement 2007 – 2010” (the EBA).
The Applicant was employed by the Respondent to assist the Respondent in the execution of its obligation to the Service. Initially, the Respondent acted as an assistant to Mr Laragy when working on the automatic doors, during which time he also was given training and experience. The Applicant does not hold any relevant trade qualification. The Respondent later purchased a utility motor vehicle which the Applicant used whilst attending at the Service’s stations on his own to do the work previously done by Mr Laragy.
Unfortunately, the contract the Respondent had with the Service concluded and there was no longer any capacity for the continued employment of the Applicant. It should be noted that neither party makes any compliant against the other as to their respective role as employer or employee. It was simply the change in the availability of work that precipitated the Applicant’s cessation of employment.
The Respondent terminated the Applicant’s employments and provided the him with a payslip that indicated that he would be paid 2 weeks pay in lieu of notice and a redundancy payment of 4 weeks pay. However, the redundancy payment was not made for the Applicant, having made inquiries of the FWO Ombudsman’s internet website, discovered that it was not liable for redundancy payments if it did not employ 15 or more employees. The Applicant was the Respondent’s only employee at the time.
The Applicant worked for the Respondent from 15 November 2009 to 10 December 2010, some 56 weeks.
Advice from Fair Work Ombudsman
Not having been paid the redundancy first promised him, the Applicant lodged a complaint with the Fair Work Ombudsman (FWO) who investigated this claim, amongst others.
By a letter dated 21 July 2011 the FWO advised that the Applicant was not entitled to a redundancy payment because the National Employments Standards (NES) applied; which standards precluded an obligation to pay redundancy payments where the employer employed less than 15 employees.
Not satisfied with that assessment of the Respondents obligations, the Applicant went to a different office of the FWO and received advice that the EBA superseded the NES and that the Applicant under the EBA was entitled to a redundancy payment.
The Enterprise Agreement
Having now read the EBA it does not incorporate the NES in it and it clearly purports to exclusively embody the entitlement of employees of the Respondent. The employment of the Applicant is clearly caught by the EBA.
The Applicant therefore is entitled to a redundancy payment as provided for in the EBA.
There was some confusion in the minds of both the Applicant and the Respondent as to how the Applicant’s employment should be categorised. I am satisfied that, in regard to the nature of his work and also his lack of trade qualifications, that he is properly categorised as an “Electrical Worker Grade 2”.[3]
[3] See Clause 14.1.2 of Appendix K to EBA
Clause 21 (Common Clauses – Severance) of the EBA has application. That clause provides ultimately that the Respondent should have been making a contribution of $65 per week during the period of the Applicant’s employment for any redundancy he may suffer.[4]
[4] See Clause 5.1 of Appendix C to the EBA
On that basis, the Respondent owes the Applicant $65.00 x 56 weeks; namely, $3,640.00.
An order will be made for that amount.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Date: 17 May 2012
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