Morrison v Ancj Transport Pty Ltd

[2016] FCCA 3468

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORRISON v ANCJ TRANSPORT PTY LTD [2016] FCCA 3468

Catchwords:
INDUSTRIAL LAW – Calculation of underpayments pursuant to the Road Transport and Distribution Award 2010 (Cth).

Legislation:

Fair Work Act 2009, s.116.
Road Transport and Distribution Award 2010 (Cth), cls.12.5, 16.4, 26.1, 26.2, 28.1

Applicant: DAVID JOHN MORRISON

Respondent: ANCJ TRANSPORT PTY LTD

File Number: MLG 2143 of 2015

Judgment of: Judge Jones

Hearing date: 5 September 2016

Date of Last Submission: 5 September 2016

Delivered at: Melbourne

Delivered on: 5 September 2016

REPRESENTATION

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: Mr Stirling

ORDERS

1. The Respondent prepare a calculation based on my findings.

2. The proceedings be set down for a Directions hearing on 14 February 2017 at 9.30am.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2143 of 2015

DAVID JOHN MORRISON

Applicant

And

ANCJ TRANSPORT PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. This is an application made by the Applicant, Mr David Morrison, pursuant to the Small Claims List, under the Fair Work Act 2009 (Cth). The Applicant filed an application and Form 5 on 17 September 2015. The Respondent is ANCJ Trans Proprietary Limited, and the matters which are not in dispute are as follows. Firstly, that the Applicant was employed as a casual for the period from 23 September 2013 to 23 January 2015, and during that period he was paid at a flat rate of $22.00 per hour. His superannuation was calculated on that rate. During the relevant time, the Respondent was covered, as was the employee, therefore, by the Road Transport and Distribution Award 2010 (Cth) (“the Award”) and, consequently, that modern award governs the entitlements of the Applicant.

2. To their credit, the parties have both engaged in calculations at their expense, having regard to the entitlements under the Award. The Applicant, by his most recent affidavit that he filed on 17 August 2016, claims an amount of underpayment of $10,238.46, which comprises the following: the appropriate casual loading; overtime he was entitled to pursuant to cl.12.5(d) of the Award; a meal allowance during overtime worked and, also, Saturday and Sunday time-and-a-half, pursuant to cl.28.1 of the Award. The Respondent concedes that the Applicant was underpaid by an amount of $5,067.82. The Respondent forwarded an amount of $324.12 by cheque, which was received by the Applicant as a benefit as the Applicant’s superannuation scheme account was closed. I take this amount to indicate, because there are no submissions to the contrary, that that is the amount the Respondent calculated that the Applicant was underpaid in relation to his superannuation.

3. The Applicant was, of course, entitled to the casual loading under cl.12.5 of the Award. He was not entitled to be paid public holidays, as is made clear under s.116 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant was entitled to overtime, pursuant to cl.12.5(d) of the Award, and he was entitled to a meal allowance, in accordance with cl.16.4(e) and cl.26.2(a) of the Award, when he worked overtime. He was also entitled to a meal break, pursuant to cl.26.1(c) of the Award, which I will come back to shortly, and he was entitled to penalty rates on Sunday, pursuant to cl.28.1 of the Award.

4. The dispute between the parties arises out of the following.  Firstly, the Applicant claims that on each day he worked, he did not take a meal break in accordance with the relevant clause of the Award. Further, his calculations (which he has had prepared by a bookkeeping organisation) are derived from what are referred to as “driver weekly hour sheets”, which are completed by the relevant driver (the Applicant in this case) on the completion of shifts, rather than payslips, which are relied on by the Respondent. The Applicant says that the driver weekly hour sheets are a more reliable indicia for the calculations. I have not been privy to all of those sheets and the comparison with the payslips, most of which are before the Court.  However, it is obvious that there are differences between the two, but on occasions they seem to go both ways.

5. The Respondent’s calculation of an underpayment, which relates to another issue in dispute, includes various days on which they say the Applicant was paid but did not work, and these days are nominated as:

   -25 December 2013; 

   -22 April 2014 to 26 April 2014 (which was the period including Easter and Anzac Day);

   -18 August 2014; 

   -19 August 2014; 

   -8 September 2014; 

   -9 September 2014; 

   -27 October 2014; 

   -4 November 2014; 

   -22 December 2014 to 26 December 2014; 

   -5 January 2015; 

   -19 January 2015; and

   -26 January 2015. 

6. Other than on the days 19 August 2014 and 27 October 2014, the Applicant argues that he did not work and was not paid.

7. However, his explanation, which I have gleaned from the cross‑examination of Mr Mitrovski, who is the owner of the Respondent, is that this was payment made for work that the Applicant engaged in, which was maintenance work that was conducted off-site, at least for a period of time.

8. I will now turn to the various issues in dispute and make my findings and, consequent to that, I will attempt to calculate what is owed or otherwise I will have to make the parties do that, because that is the only efficient way of doing it.

9. There is the question of the reliability of the payslips and the driver weekly sheets. The first thing is that not all of the driver weekly sheets are before the Court, whereas most of the payslips are before the Court. I accept that there are differences between the driver weekly sheets and the reliability of payslips, and the payslips themselves.  However, it seems to me that on some occasions this resulted in an underpayment to the Applicant, and on some occasions it resulted in an overpayment to the Applicant. It would be, in my view, inappropriate in a proceeding such as this to scrutinise and then decide where all of those discrepancies are, in order to arrive at some calculation. As I have the payslips before me, I am prepared to find that the appropriate basis for calculating the Applicant’s entitlements are the payslips, so far as they record the day, start time and finishing time of his work.

10. There are some errors in the actual payments made, and I will come to that, but that is the first matter I have to decide. Therefore, my preference is for the calculation to be based on the payslips, and I decide on that basis. 

11. However, there is a concern that was raised in cross‑examination, although it was not dealt with in submissions, about the fact that even on the payslips for week 46, and I am referring, here, to 11 August 2014, 13 August 2014 and 14 August 2014, the amount which the Applicant was paid was not correct. In other words, on 11 August 2014, the spread of hours on the payslip indicates that the Applicant worked 10.5 hours. However, the Applicant was paid for seven hours of work.  Mr Mitrovski’s answer to that is that he had lent the Applicant $1,000, and that he deducted amounts from his pay to pay the loan.

12. There is no evidence that, at the time that the deductions were made, there was a complaint from the Applicant. In fact, I must say, it seems to me that, for most of the period, there was probably a good working relationship between Mr Mitrovski and the Applicant. There does not seem to be any dispute, apart from the fact that the Applicant says that he worked on maintenance. Mr Mitrovski says that he paid the Applicant for public holidays because he needed the money and that he lent the Applicant money. There is evidence that the Applicant’s car was filled up with fuel and that the Applicant was permitted, during a difficult period, to camp in Mr Mitrovski’s backyard. The problem, of course, with all these relationships at workplaces, is that they can fall apart and, somewhat like the breaking apart of a family, it can then be very heated and cause enormous grief for both parties. Having said that, I have formed the view, given Mr Mitrovski’s direct evidence, which did not seem to be contradicted, that on those particular days – in August 2014, week 46 on the payslip – there was a deduction that was made by the employer to secure the repayment of a loan, and in the absence of any evidence that there was a complaint about that at the time, or a lack of awareness about that happening, I am prepared to accept that – by way of conduct – the Applicant agreed to that process.

13. Turning to the meal breaks, the evidence at the last hearing from the Applicant was that there was a specific area outside the quarry, which is not disputed by the Respondent, a smoko hut.  But evidently – a truck that is involved in delivering products from the quarry to various clients is not going to be at the quarry necessarily at the meal break time, and the meal break is required to occur at least three and a half hours into a shift. The meal break could occur anywhere. The Applicant’s evidence was that in metropolitan Melbourne, it was difficult to pull over and find somewhere to park.  He did concede that he parked at McDonalds around five times during the employment period.  He gave evidence that Mr Mitrovski and his son pulled over and told him off for taking a meal break, and abused him. However, there are no dates provided. 

14. The Applicant attached to his most recent affidavit a statutory declaration of Mr Coyne. It is a statutory declaration, in which the person is sworn to tell the truth, or declares that they have told the truth, and it is declared in the presence of a required person under the relevant act. In that affidavit, Mr Coyne deposes that they did not have meal breaks for any time, and also talks about Mr Mitrovski abusing him if he took meal breaks. The difficulty with the statutory declaration, of course, is that the Respondent does not have an opportunity to cross-examine the witness.  Therefore, the weight I can give to that statutory declaration is limited. In the circumstances it simply would not be fair.

15. Mr Mitrovski’s evidence in relation to this point was that, firstly, the quarry manager would probably be in a better position to give evidence. The Court is left with deciding whose evidence to prefer, the Applicant and Mr Coyne or the Respondent, who says has seen the Applicant parked on the side of the road. The Respondent maintains that the Applicant could have had a meal break at any time when dropping off a load, and that he has seen the Applicant parked near 7-Eleven and McDonalds on a number of occasions. I pressed Mr Mitrovski to give the Court some idea of the number of times he has seen the Applicant parked at one of these locations, or even a proportion of time, but Mr Mitrovski could not recall.

16. I note that none of the payslips, which are payslips that are issued by the Respondent, record a meal break. This may be simply because the payslips are not particularised in accordance with the Regulations under the Act. I would suggest that the Respondent review their payslips. But the fact is, on the evidence before the Court, the hours worked are simply, apart from the August 2014 days that I have mentioned – are simply a total of the hours as between the start time and the finish time recorded on the payslips. There is no provision for a meal break. Mr Mitrovski also confirmed that the driver weekly hour sheet likewise did not record a meal break.

17. So what does the Court do with this evidence in a Small Claims list? I do not have direct evidence about this matter; I have indirect evidence of the Applicant and Mr Mitrovski, and the indirect evidence of the payslips.  Without direct evidence, I think that the best approach in this matter is simply to say that I am satisfied that it is likely that the Applicant would have worked through meal breaks on occasions.  For example, when he was driving through metropolitan Melbourne and it would have been difficult to pull over and park. On other occasions, he would have had an opportunity to pull over for a meal break and would have done so.

18. Accordingly, the best I can do is to decide that on half of the occasions the Applicant did take his meal break, and on half of the occasions he did not. Now, this is not perfect science but it is the best I can do in the circumstances. 

19. The next issue is the days that the Respondent has included in its calculation of days, on which the Applicant was paid but did not work, on balance. I have considered the evidence, which is, of course, the evidence of the Applicant and Mr Mitrovski. Mr Mitrovski said on some occasions in relation to some questions “I don’t recall”, however on this issue he was very certain. On the other hand, the Applicant is certain that he worked on the maintenance for Mr Mitrovski. I am not really able to discern the real truth of the matter.

20. There are two days on which the Applicant says that he did not work:  19 August 2014 and 27 October 2014, but there is no evidence about that before the Court. On the balance of probabilities, I am satisfied that all of those days relied on by the Respondent as days that the Applicant was paid but did not work, are days which he was paid for and he did not work for, and there is no explanation that would resolve that. I should say that, in relation to the maintenance days, the Applicant has indicated that they were not marked on the driver’s daily worksheet. I have formed the view that this likely formed part of the relationship.

21. Consequently, I am satisfied that, given we are talking about wages, it would be appropriate to offset that amount from any calculation. There is law which says you cannot offset something different – an Award or entitlement that is different to something that was overpaid - but in this case the overpayment was in relation to wages and the claim by the Applicant is in relation to wages. Therefore, I am satisfied that it should be offset.

Conclusion

1. I will make Orders that the Respondent is to prepare calculations based on my findings and that the matter be set down for Directions on 14 February 2017 at 9.30am.

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

Date:     3 March 2017