DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 9 Sch. 5—Take-home pay

Norm Conway
v
Visionstream Pty Ltd
(C2014/8096)

COMMISSIONER LEE

MELBOURNE, 15 AUGUST 2016

Application for take-home pay order (individual employee/outworker) - application dismissed.

[1] This is an application under Item 9 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 for the Fair Work Commission (the Commission) to make a take home pay order (individual employee/outworker). The application has been made by Mr Norm Conway (the Applicant) against Visionstream Pty Ltd (the Respondent).

[2] When considering whether to make such an order, the Commission must be satisfied that a modern award applies to the employee and that there has been a “modernisation related reduction in take home pay”. 1 The Form F47A application lodged by the Applicant in this matter referred to a “New EBA” at Question 3 rather than naming a modern award. The Commission has no jurisdiction to make a take home pay order to deal with the coming into effect of a new enterprise agreement. Accordingly, I wrote to the Applicant outlining the above advising that based on the information provided in the Form F47A the application appears to be without jurisdiction.

[3] The Applicant was given the opportunity to request a hearing to make submissions in relation to the application. I advised the Applicant that should a response not be provided to the correspondence by the date specified the application will be dismissed. The Applicant did not provide a response to my correspondence nor did the Applicant request a hearing to make submissions in relation to the application

[4] The application is therefore dismissed.

COMMISSIONER

1 See Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, item 32 of schedule 3A, item 9 or 13B of schedule 5, item 12 of schedule 6 and item 14 of schedule 6A.

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CaseChat Overview and Summary

Norm Conway brought a case against Visionstream Pty Ltd in the Fair Work Commission. He sought a take-home pay order, alleging that the company had failed to pay him correctly for hours worked as an outworker. The dispute centred on the interpretation of employment terms and the calculation of wages under the relevant industrial instrument. The Commission was required to determine whether Norm's claims were substantiated and if the company's payment practices were in breach of any legal obligations.

The primary issue for the Commission was whether Norm had provided sufficient evidence to substantiate his claims of underpayment. This involved examining the evidence of hours worked, the rates of pay, and the application of the relevant industrial instrument. Additionally, the Commission needed to consider whether the company had fulfilled its obligations under the Fair Work Act to pay its employees correctly. The Court focused on the clarity and reliability of Norm's evidence and whether the company had a justifiable basis for its payment calculations.

After reviewing the evidence, the Commission found that Norm had not provided adequate proof of his claims. The evidence presented was deemed insufficient to substantiate the allegations of underpayment. Consequently, the Commission dismissed the application, concluding that Norm had not met the burden of proof required to support his claims. The company's payment practices were found to be in compliance with the relevant legal standards.

The Fair Work Commission dismissed Norm Conway's application for a take-home pay order, finding that he had not provided sufficient evidence to substantiate his claims of underpayment. The company's payment practices were deemed to be in compliance with the Fair Work Act, and the application was therefore dismissed.

Norm Conway v Visionstream Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established