Oliver Petrie v Jakes Trading Corporation Pty Ltd T/A Gmn/Vegie Prepi - [2023] FWC 769

[2023] FWC 769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Oliver Petrie
v

Jakes Trading Corporation Pty Ltd T/A Gmn/Vegie Prepi

(C2022/7866)

COMMISSIONER HUNT

BRISBANE, 11 MAY 2023

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – jurisdictional objection – whether employee was employed at the time of raising a dispute – jurisdictional objection upheld – application dismissed

On 29 November 2022, Mr Oliver Petrie made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure either under the Jakes Trading Corp. Pty Ltd t/a GMN Vegie Prepi Employee Collective Agreement 2009 (the Agreement) or the Food, Beverage and Tobacco Manufacturing Award 2020 (the Award). Jakes Trading Corporation Pty Ltd T/A Gmn/Vegie Prepi is the Respondent to this application (the Respondent).

The Respondent’s business is within the Brisbane Produce Markets at Rocklea.

I listed the matter for a conference on 16 January 2023 and invited the Respondent to provide a response to the application prior to this date. In its response, the Respondent objected to the application, arguing that the Commission did not have jurisdiction to deal with the dispute on the basis that Mr Petrie was not an employee at the time of raising the dispute either with the Respondent or the Commission.

Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on 17 March 2023 with the parties to attend in person. The Respondent was represented by Ms Zerlinda Mills of Brismark (the Queensland Chamber of Fruit and Vegetable Industries Cooperative). Mr Petrie represented himself, with his father, Dr Simon Petrie attending as his support person.

Mr Petrie gave evidence and was cross-examined. Ms Sue Rigato, Director of the Respondent, and Mr John Meredith, Supervisor of the Respondent gave evidence and were cross-examined.

Background

Mr Petrie commenced employment with the Respondent on 21 December 2021, engaged as a Casual 1 Storeworker at the hourly rate of $27.37. Mr Petrie’s wage was then increased to $28.67 in accordance with Appendix Four – Wage table as at 1 July 2022, of the Agreement.

Mr Petrie disputes that his employment was covered by the Agreement. He submits that the Award covered the kind of duties performed by him during his employment, and the Agreement did not.

The Agreement was made prior to the amendments of the Act coming into force and is a ‘collective agreement-based transitional instrument’ (CABTI), or ‘zombie’ agreement. It provides for a 23% casual loading as opposed to 25% within the Award. The span of hours permits ordinary hours of work to be performed from 4:00am on Mondays without any shift payment. Further, it provides for a night shift loading of only 5%.

Jurisdictional objection

Mr Petrie’s dispute largely centres around a claim for underpayment of wages, as he contends that the Award applied to the work performed by him, and not the Agreement. If he is correct on that issue, given the significantly lower terms and conditions within the Agreement when compared with the Award, he would be owed a substantial sum.

The Respondent objects to Mr Petrie bringing a dispute before the Commission as it contends he was not an employee at the time he raised the dispute. Accordingly, the questions for consideration before the Commission are:

A.Was Mr Petrie an employee of the Respondent at the time of raising his dispute?

B.If Mr Petrie was an employee of the Respondent at the time of raising his dispute, which industrial instrument covered the work performed by him and can his application be arbitrated before the Commission under the relevant dispute settlement procedure?

On account of Mr Petrie being self-represented, I considered it appropriate to explain in plain language, the potential outcomes of Mr Petrie’s pursuit of his application. On 13 March 2023, just days prior to the hearing, correspondence was sent from my chambers to the parties outlining the three scenarios available to the determination of the issue before the Commission:

“Scenario 1: If the Commissioner determines that the dispute was raised by the Applicant during the employment AND he is covered by the Jakes Trading Corp. Pty Ltd t/a GMN Vegie Prepi Employee Collective Agreement 2009 (the Agreement), the Commission has jurisdiction to hear and determine the dispute between the parties. The Agreement largely provides for work without the payment of penalty rates.

Scenario 2: If the Commissioner determines that the dispute was raised by the Applicant during the employment AND he is not covered by the Agreement, but is otherwise covered by the Award (as per the Applicant’s submissions), the Commissioner does not have jurisdiction to hear and determine the dispute between the parties unless the Respondent consents to arbitration. As explained in the correspondence from chambers on 17 January 2023, the Commission would need to learn from the Respondent if it consented to arbitration. If it did not, the application would be dismissed (or withdrawn by the Applicant).
Scenario 3: If the Commissioner determines that the dispute was not raised by the Applicant during the employment, the application will be dismissed.”

Powers of the Commission to deal with disputes

Mr Petrie filed his application under s.739 of the Act. Section 739 provides as follows:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note:   This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3)       In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4)       If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note:   The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5)       Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6)       The FWC may deal with a dispute only on application by a party to the dispute.”

Further, s.738 of the Act provides:

“738 Application of this Division

This Division applies if:
(a)       a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b)       an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c)       a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”

Clause 2.1 of the Agreement sets out the dispute resolution procedure for disputes under the Agreement. The clause is as follows:

“2.1 Dispute Settlement Procedure

In the event a dispute arises between an employee and the employer in relation to a matter arising under this agreement, it will be dealt with in the following manner:

2.1.1In the first instance the parties will attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, then discussions between the employee or employees concerned and more senior levels of management will be appropriate.
2.1.2A party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute.
2.1.3If a dispute in relation to a matter arising under the agreement is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to the Australian Industrial Relations Commission (the Commission) for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary the Commission may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.
2.1.4It is a term of this agreement that while the dispute resolution procedure is being conducted, work shall continue normally unless an employee has a reasonable concern about an imminent risk to his or her health or safety.
2.1.5The decision of the Commission will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench”

Clause 33 of the Award sets out the dispute resolution procedure for disputes under the Award. The clause is as follows:

“33. Dispute resolution

33.1Clause 33 sets out the procedures to be followed in a dispute arises about a matter under this award or in relation to the NES.

33.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.

33.3If the dispute is not resolved through discussion as mentioned in clause 33.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.

33.4If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 33.2 and 33.3, a party to the dispute may refer it to the Fair Work Commission.

33.5The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.

33.6If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.

33.7A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 33.

33.8 While procedures are being followed under clause 33 in relation to a dispute:

(a)work must continue in accordance with this award and the Act; and
(b)an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.

33.9 Clause 33.8 is subject to any applicable work health and safety legislation.”

Authorities relevant to employment being on foot to be able to bring a dispute

It has been held by the Commission that if an employee agitates a claim arising under an enterprise agreement while employed, the Commission has jurisdiction to deal with the dispute, even after that employee’s relationship with the employer is terminated.[1]

In the matter of Jajoo v ING Administration Pty Ltd,[2] the employee submitted that he had raised a dispute with his employer while employed. The employer objected to the application before the Australian Industrial Relations Commission on the basis that the enterprise agreement did not apply to former employees. Senior Deputy President Drake found, at first instance, that the employee had raised a dispute whilst employed. On appeal,[3] the Full Bench of the Australian Industrial Relations Commission found that the employee sought to progress a dispute under the relevant dispute settlement procedure while still employed, that dispute was unresolved when his employment terminated and there was no sound basis for construing the terms of the Workplace Relations Act 1996 in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Australian Industrial Relations Commission, after the termination of his employment.

Recently, in Mitchell v University of Tasmania,[4] a Full Bench of the Commission supported earlier Full Bench decisions in Kentz,[5] Broadspectrum[6] and Goonyella,[7] where it was determined that where an application under s.739 of the Act for the Commission to deal with a dispute has been made at a time when an employment relationship between the relevant employer and employee remains on foot, the powers of the Commission to deal with the dispute under s.739 are engaged at that time and are not subsequentially vitiated because the employment relationship later comes to an end.

The Respondent’s evidence

The Respondent’s evidence goes to two issues; firstly, the nature of the casual engagement, and secondly, how the employment ended. The Respondent’s position is the casual employment ended on or around 15 November 2022.

First Witness Statement of Sue Rigato

The first witness statement made by Ms Rigato is extracted below:

“I, Sue Rigato, co-owner, and Director of Jakes Trading Corp Pty Ltd t/a GMN/Vegie Prepi, attest that the attachments being provided are true and correct, and the documents containing copies of the text messages between Supervisor, John Merry and Oliver Petrie and myself and Oliver Petrie are direct screen prints taken from John Merry’s and my mobile phone.”

John Merry is, in fact, John Meredith.

The first attachment to Ms Rigato’s statement is a user activity report. The report is summarised as follows:

Occurrence Time	Event Description
6/11/2022 4:27:13 PM	Petrie, Oliver was granted entry into Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
7/11/2022 1:01:49 AM	Petrie, Oliver exited to Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
7/11/2022 7:59:27 PM	Petrie, Oliver was granted entry into Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
8/11/2022 12:06:30 AM	Petrie, Oliver exited to Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
9/11/2022 7:22:36 PM	Petrie, Oliver was granted entry into Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
10/11/2022 1:36:47 AM	Petrie, Oliver exited to Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
10/11/2022 4:51:46 PM	Petrie, Oliver was granted entry into Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
10/11/2022 4:59:40 PM	Petrie, Oliver exited to Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
10/11/2022 5:01:39 PM	Petrie, Oliver was granted entry into Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
13/11/2022 4:34:23 PM	Petrie, Oliver was granted entry into Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
14/11/2022 8:26:34 PM	Petrie, Oliver was granted entry into Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
15/11/2022 2:08:31 AM	Petrie, Oliver exited to Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
15/11/2022 7:57:02 PM	Petrie, Oliver was granted entry into Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.
15/11/2022 8:12:51 PM	Petrie, Oliver exited to Walkway SE Gate at F Block through Fresh Centre SE Pedestrian Access.

Messages between Mr Petrie and Mr Meredith from January 2022 have been provided in evidence by the Respondent to demonstrate the nature of the casual employment. Some of those have been reproduced.

On 16 January 2022, the following text messages were sent:

“Mr Petrie:Hi Jhon it’s Olie sorry to bother you but what time do you want me to start today, I hope you don’t mind I got your number off Rusty

Mr Meredith: All good, come in same time as last Sunday plz

Mr Petrie:Again I’m so sorry Jhon I really hate leaving things not done I just really feel ill I was ok when I got to work and I don’t know what happened, just feel like I’m going to throw up. Will be going to the doctor tomorrow morning. Again very very sorry please let the other no I apologize for leaving work to be done
Mr Meredith: All good mate, not too big a night so will be fine. Let me know how U go at doctor. Cheers”

On 17 January 2022, Mr Petrie sent a photo of his medical certificate to Mr Meredith by text, declaring him unfit for work from 17 January 2022. The following text messages were sent:

“Mr Petrie:Hi Jhon just been to the doctor unfortunately I won’t be able to make it in very very sorry about that please see doctor certificate in next message. I will also bring it in for you records when I’m in next. Again very sorry, please let me know what time you want me in on Thursday.

Sorry Jhon I ment times for Wednesday got my days confused
Again my apologies

Mr Meredith: It’s okay”

On 19 January 2022, the following text messages were sent:

“Mr Petrie: Hi Jhon what time would you like me to start today?

Mr Meredith: 8:30 plz

Mr Petrie: No problem see you then

Mr Meredith: [thumbs up emoji]”

On 22 February 2022, the following text messages were sent:

“Mr Petrie:Sorry ku it doesn’t look like im going to be make it in again I am stuff just keep going wrong my car is now not working I have called RACQ but I’m not sure I’ll get it sorted, I’m so sorry I need and want this job but going through a hell of a lot of bad stuff at the moment, as things just keep going wrong. I will text you tomorrow and hope to work tomorrow if you can give me a time. Thank you

Sorry for bothering you Jhon I just wanted you to know the situation. I am going through hell at the moment nothing is going right for me, I won’t you to know I love my job I want to keep it and need to keep it. I’m am so sorry”.

Mr Meredith did not respond to Mr Petrie.

On 19 March 2022, the following text messages were sent:

“Mr Petrie:Good morning John sorry for distributing you, Koo told me to contact you when I was well enough to come back to work, I don’t know if she told you but I have had tonsillitis and been bed ridden all week, I am incredibly sorry if this caused any inconvenience at work, please let me know what time you would like me in. Again sorry for disturbing you at this early hour, and hope you have had a great weekend.

Thank you olie
Mr Meredith: Good to hear it feeling better, see you at 5:30pm Sunday.
Mr Petrie:Thank you Jhon my apologies again I will definitely be there. Please enjoy your weekend.
Mr Meredith: Thanks! [smile emoji]”

On 24 March 2022, at 6:30pm, Mr Meredith contacted Mr Petrie by text asking if Mr Petrie could start at 4:00pm that day. There was no response made by Mr Petrie.

The next text message was at 7:11am on 10 April 2022, in which Mr Petrie asked whether Mr Meredith wanted him to start at 3:00pm that day and noted he had to leave before 12 because of court. Mr Meredith replied that he could come in at 5:00pm.

On Tuesday, 12 April 2022, at 1:14am, Mr Petrie texted to Mr Meredith the following:

“Still in court stepped out just to let you know what’s going on, I very sorry it looks like I’m not going to be able to make it tonight I am completely over it so much stress man, I’m incredibly sorry please let me know what time you would like me in tomorrow, again very sorry for the late notice, please for give me for letting the team down and apologies to everyone for me, sorry again”

Mr Meredith did not respond until at 12:25pm, stating “Come in with Rusty plz, I think I told him 7”. Mr Petrie responded that it would not be a problem and apologised for the day before.

On 1 May, Mr Petrie sent Mr Meredith a text advising he had a doctor’s appointment at 2:40pm as he had an injured back. He indicated he may not be able to work the following night on account of injury. On 2 May 2022, he confirmed he was unable to work due to a sore back. He didn’t work for a few days.

On 20 May 2022, Mr Petrie notified Mr Meredith his back was sore, and he was unable to work.

From 5 June 2022 to 27 October 2022, Mr Petrie sent the following text messages to Mr Meredith, in which Mr Meredith either replied with a thumbs up or an acknowledgement.

“5 June: I’m so sorry Jhon I as at work waiting to go in but my mind is other places at the moment I’m very very sorry but stressed out of my head, and I don’t think I would be any good to you today, have spoken to rusty out side and he will tell you I’m not in a good state hopefully I’ll be good for tomorrow night, I’m so sorry.
5 July(6:24pm) Sorry I’m able to come tonight
(7:36pm) Had an apsulutt fucker of a day, got my dad from hospital at 15:00 but while I was in getting him someone got into my car and stole my wallet and I was in the hospital 10 minutes, had a very stressful day very sorry to let the team down

10 JulySorry to let you know John went to the doctor and have pulled a muscle in my shoulder still incredibly painful
Won’t be coming in today

28 July:Going home man as I’m struggle metaly today sorry but if I don’t get out of here I don’t know what will happen, very sorry, but stress about family shit, sorry if I’ve let anyone down.
Don’t know why but anything may make me snap tonight I hope you understand. Sorry

25 August:Sorry Jhon not well won’t be able to make it today been throwing up sorry
11 September:     Sorry Jhon I’m not feeling well at all I don’t think I’m coming in today, very sorry
12 September:     Went to court today the judge has pushed it to the district court under a hell of a lot of stress at the moment won’t be coming in sorry
28 September:     Jhon over the last two nights the shifts have been three hours four and a half hours I want to make you aware I made 7 Dollar’s on Monday night, because I had to put $50 dollars of fuel in my car, the shifts are getting shorter while the day shift apparently been complaining that they are working to many hours, how is this fair ??
11 October:Very sorry Jhon not well, my apologies will keep you updated,
12 October:Have had a fever all night, it’s past but still not feeling great, hopefully in tomorrow my apologies again
20 October:Sorry Jhon feever is back fucking thing has moved to my chest, very sorry think I must have come back to soon very very sorry
27 October:(7:42am) Hi Jhon sorry for messaging you got home and my dad’s stint is playing up and he is not well, in bed lying down waiting for the pain killers to kick in, I am waiting to see if he feels better and don’t have to call an ambulance, will keep you updated as soon as I know what is going on but I hope I can make it to work, just concerned at the moment, please forgive the early message
(10:05am) Taking my Dad to hospital doesnt look like Ill make it in sorry but will keep you updated

(11:18am) In emergency at the moment

(2:12pm) Thank you man still at the hospital wasn’t allowed to go in but my mum’s with him very sorry I can’t make it

The final text message sent from Mr Petrie to Mr Meredith was at 8:10pm on 15 November 2022. It states, “Going home”.

On 17 November 2022, the following text messages were exchanged between Ms Rigato and Mr Petrie:

“Ms Rigato: Hi Olie
I understand that you want to move on, could you pls bring back your glove and we will finalise your pay on Friday.
Thanks heaps
Sue

Mr Petrie:Hi Sue on advice from the fair work commission I will be forwarding a letter to you in due course outlining my claim for outstanding entitlements. I will return the glove.
Ms Rigato:Please do, as you have been paid correctly as per the eba agreement we are under.”

Ms Rigato provided a copy of correspondence addressed to her dated 27 November 2022 from Mr Petrie, however it became apparent after the hearing that earlier correspondence had not been included in the Respondent’s witness material. I consider it necessary to detail here the correspondence between the parties following the above text messages on 17 November 2022.

One day after the hearing, Mr Petrie sent copies of correspondence between the parties which had not been included in any parties’ material prior to the hearing. A further opportunity was provided to the parties to provide submissions relevant to this new material before the Commission. I expressed my disappointment to all of the parties that this was not before the Commission during the hearing when the correspondence was known to the parties.

Mr Petrie sent the following email to Ms Rigato on 22 November 2022:

“Dear Ms Rigato,

I have taken advice from the Fair Work Commission concerning Rates of Pay from the
time that I commenced work at GMN/Vegie Prepi from 21 st December 2021.

It is very clear there are a number of contentious areas concerning payment of wages
and I hereby indicate that I am requesting a formal resolution of a dispute concerning
these matters, including the following:

1.Base Rate of Pay
2.Non payment of Sunday rates

3.Non payment of Nightly rates

4.Non payment of Public Holiday rates

5.Non payment of overtime rates

6.Non payment of “wet places” allowance

Under the Fair Work Act the Food, Beveridge, and Tobacco Manufacturing Award
(2020 Section 10) states:

10.1 A casual employee working ordinary time must be paid:

(a) the ordinary hourly rate; plus
(b) a casual loading of 25% of the ordinary hourly rate. [10.3 renumbered as 10.2 by PR733846 from 27Sep21]

10.2 The loading constitutes part of the casual employee’s all-purpose rate.

10.4 Where this award refers to a penalty rate, overtime rate or shift loading as being
calculated as a percentage of the ordinary hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual ordinary hourly rate if the entitlement is applicable to a casual employee.

10.5 On each occasion a casual employee is required to attend work the employee
must be paid for a minimum of 4 consecutive hours’ work. In order to meet their
personal circumstances a casual employee may request and the employer may agree to an engagement of no less than 3 consecutive hours.

I question my base rate of pay, arguing that my previous experience in kitchens
should have placed me at a higher level. Immediately, this changes the base rate
of Pay for the calculation of Penalties and Entitlements.

I am also aware that your pay system runs from Monday to Friday and that your
PaySlips show no breakdown of hours worked, for example on Sundays, Public
Holidays, Night Rates or Overtime.

To give one specific example, the Night Shift are generally required to clock-on at 5pm
on Sunday afternoon and often work a 12hour shift through to 5am on Monday. Your
calculation for wage purposes would be Base Rate X 12hrs. This calculation in no way
takes into account loadings for night work, Sunday Work and overtime.

The Night Shift throughout the year has been required to work public holidays. The
Award under the Fair Work Act is very clear.

23.3 Payment for overtime—continuous shiftworkers
A continuous shiftworker working overtime will be paid 200% of the ordinary hourly rate.

23.5 Sunday work
An employee required to work overtime on a Sunday must be paid 200% of the ordinary
hourly rate until the employee is relieved from duty with a minimum payment of 3 hours.

(a) Employees will be paid the following rates for overtime worked (except as otherwise provided in clauses 23.2(b), 23.5, 23.6 and 23.7):

(i) 150% of the ordinary hourly rate for the first 3 hours; and
(ii) 200% of the ordinary hourly rate thereafter.

23.6 Public holiday work

(a) A day worker required to work overtime on a public holiday must be paid 250% of
the ordinary hourly rate until the employee is relieved from duty with a minimum
payment of 3 hours.

(b) A continuous shiftworker required to work overtime on a public holiday must be paid 200% of the ordinary hourly rate with a minimum payment of 3 hours.

(c) A non-continuous shiftworker required to work overtime on a public holiday must be paid 250% of the ordinary hourly rate until the employee is relieved from duty with a minimum payment of 3 hours.

24.3 d) An employee who works on permanent night shift must be paid 130% of the
ordinary hourly rate for all time worked during ordinary working hours on an
engagement, period or cycle on permanent night shifts.

Where shifts fall partly on a holiday, the shift which has the major portion falling on the
public holiday must be regarded as the holiday shift. By agreement between the
employer and the majority of employees concerned, the shift which has the minor
portion falling on the public holiday may be regarded as the holiday shift instead. (f) The rates in clause 24.5 are in substitution for and not cumulative upon the shift rates
prescribed in clause 24.3.

24.5 Rate for working on Sunday and public holiday shifts

(a) A continuous shiftworker must be paid 200% of the ordinary hourly rate for work on a rostered shift the major portion of which is performed on a Sunday or public holiday.

(b) A shiftworker, on other than continuous shiftwork, must be paid 200% of the ordinary hourly rate for all time worked on a Sunday and 250% of the ordinary hourly rate on a public holiday.
(c) Where shifts start between 11.00 pm and midnight on a Sunday or public holiday,
the time so worked before midnight does not entitle the employee to the Sunday or public holiday rate for the shift.

(d) The time worked by an employee on a shift starting before midnight on the day
preceding a Sunday or public holiday and extending into the Sunday or public holiday
must be regarded as time worked on the Sunday or public holiday.

In addition, under Section 20 of the Award subsection 20.2 states as follows:
Wet places [20.2(f)(iv) varied by PR729332, PR740757 ppc 01Jul22]
An employee working in any place where their clothing or boots become saturated by
water, oil or another substance, must be paid $0.72 per hour extra. Any employee who
becomes entitled to this allowance must be paid this allowance only for the part of the
day or shift that they are required to work in wet clothing or boots. · Clause 20.2(f)(iv)
does not apply to an employee who is provided by the employer with suitable and
effective protective clothing and/or footwear

I believe that it is quite clear that GMN/Vegie Prepie have not been compliant with
sections of the Award. However, any calculation of monies outstanding and owed
becomes fraught with difficulties.

First, the correct base rate of pay needs to be established properly because all
penalties and entitlements are calculated from the base rate of pay.

Therefore, I request a rationale for why the base rate of my pay was $23 31 plus
25% loading for casual per hour.

Second, the lack of clarity on the weekly payslips in terms of the breakdown of hours
means again, that any calculation is moot until a detailed record of hours worked, for
example, Sunday hours is available.

Therefore, I request a full and open breakdown of hours for each day worked from
21 st December 2021.

Some calculations are more transparent and easier to resolve. For example, the rate
for “wet places”. Under the Award (Section 20.2) and as part of Workplace Health and
Safety the employer is required to provide suitable and effective protective clothing
and/or footwear otherwise an allowance of 72cents per hour should be paid.
*1509 hours work X 72cents = $1,086.48

The *1509 hours is a guesstimate only, given the inadequacies of your payslips.

Further calculations of monies outstanding and owed will depend on your provision of
complete and accurate record that conform to the Act and Award. I would expect these
records to be provided within 7 days so that this dispute can be resolved as quickly as
possible.

Yours faithfully,
Oliver Petrie

cc Fair Work Ombudsman”

Within 12 minutes, Ms Rigato responded to Mr Petrie’s email when she sent the following email:

“Thank you Oliver, but please seek the correct EBA that you are under and then resend the letter. You have quoted the wrong award that you are under.
Thank you
Sue”

It is noted that Ms Rigato did not inform Mr Petrie of the enterprise agreement covering the work performed by him. It is unfathomable that she did not do so. If this information had been before me during the hearing I would have inquired why Ms Rigato did not inform Mr Petrie of the name of the enterprise agreement that had covered his employment. It was the decent thing to do.

On 26 November 2022, Mr Petrie sent a further dispute email to Ms Rigato, nominating the Metcash Trading Limited Rocklea Fresh Produce Distribution Centre Enterprise Agreement 2021 as the agreement which governed his terms and conditions. He noted that he assumed it was the correct enterprise agreement.

Approximately 30 minutes later, unhelpfully, Ms Rigato sent the following email to Mr Petrie:

“Hi Oliver

This is Metcash, which has nothing to do with us. Pls get the correct EBA before sending us another letter.

Thank you

Sue
Have a fantastic day”

Mr Petrie sent the following email several hours later. He did not receive a response from Ms Rigato:

“I apologise. Please inform me about the correct EBA.
Many thanks
Oliver”

On 27 November 2022, Mr Petrie sent Ms Rigato the following email, informing her that he had been forced to assume the name of the enterprise agreement the Respondent considered him to be covered by, as she had not responded to his request:

“Dear Ms Rigato,

I note that you have not responded to my request to identify the relevant EBA.

I am forced to assume that the relevant EBA is:

Jakes Trading Corp. Pty Ltd t/a GMN Vegie Prepi Employee Collective Agreement 2009

If this is the case, then three facts immediately emerge.

First, that this Agreement is dated 2009 and unless there is an updated version somewhere it should have been updated in 2013, 2017and 2021. The Fair Work Act 2009 states that EBA’s expire after 4years and should be renewed. It goes on to state:
‘The Employees’ Terms and Conditions may fall back to the underlying modern award’.

This raises the second point that “The base rate in the Agreement can’t be less than the base rate in the Award” and that “The National Employment Standards still apply”.

The third point is that the original agreement does not align with the current Award. For example, 5% for Night Rate and no mention of Sunday Work do not align.

I have taken advice from the Fair Work Commission concerning Rates of Pay from the time that I commenced work at GMN/Vegie Prepi from 21st December 2021.

It is very clear there are a number of contentious areas concerning payment of wages and I hereby indicate that I am requesting a formal resolution of a dispute concerning these matters, including the following:

1.Base Rate of Pay
2.Non payment of Sunday rates
3.Non payment of Nightly rates
4.Non payment of Public Holiday rates
5.Non payment of overtime rates
6.Non payment of Uniform Allowance/“wet places” allowance

Under the Fair Work Act the Food, Beverage, and Tobacco Manufacturing Award (2020
Section 10) states:

10.1 A casual employee working ordinary time must be paid:

(a) the ordinary hourly rate; plus

(b) a casual loading of 25% of the ordinary hourly rate. [10.3 renumbered as 10.2 by PR733846 from 27Sep21]

10.2 The loading constitutes part of the casual employee’s all-purpose rate.

10.4 Where this award refers to a penalty rate, overtime rate or shift loading as being calculated as a percentage of the ordinary hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual ordinary hourly rate if the entitlement is applicable to a casual employee.

10.5 On each occasion a casual employee is required to attend work the employee must be paid for a minimum of 4 consecutive hours’ work. In order to meet their personal circumstances a casual employee may request and the employer may agree to an engagement of no less than 3 consecutive hours.

I question my base rate of pay, arguing that my previous experience in kitchens should have placed me at a higher level. Immediately, this changes the base rate of Pay for the calculation of Penalties and Entitlements.

I am also aware that your pay system runs from Monday to Friday and that your Payslips show no breakdown of hours worked, for example on Sundays, Public Holidays, Night Rates or Overtime.

To give one specific example, the Night Shift is generally required to clock-on at 5pm on Sunday afternoon and often work a 12hour shift through to 5am on Monday. Your calculation for wage purposes would be Base Rate X 12hrs. This calculation in no way takes into account loadings for night work, Sunday Work and overtime.

The Night Shift throughout the year has been required to work public holidays. The Award under the Fair Work Act is very clear.

23.3 Payment for overtime—continuous shiftworkers

A continuous shiftworker working overtime will be paid 200% of the ordinary hourly rate.

23.5 Sunday work

An employee required to work overtime on a Sunday must be paid 200% of the ordinary hourly rate until the employee is relieved from duty with a minimum payment of 3 hours.
(a) Employees will be paid the following rates for overtime worked (except as otherwise
provided in clauses 23.2(b), 23.5, 23.6 and 23.7):

(i) 150% of the ordinary hourly rate for the first 3 hours; and

(ii) 200% of the ordinary hourly rate thereafter.
23.6 Public holiday work
(a) A day worker required to work overtime on a public holiday must be paid 250% of the ordinary hourly rate until the employee is relieved from duty with a minimum payment of 3 hours.
(b) A continuous shiftworker required to work overtime on a public holiday must be paid 200% of the ordinary hourly rate with a minimum payment of 3 hours.
(c) A non-continuous shiftworker required to work overtime on a public holiday must be paid 250% of the ordinary hourly rate until the employee is relieved from duty with a minimum payment of 3 hours.
24.3 d) An employee who works on permanent night shift must be paid 130% of the ordinary hourly rate for all time worked during ordinary working hours on an engagement, period or cycle on permanent night shifts.
Where shifts fall partly on a holiday, the shift which has the major portion falling on the public holiday must be regarded as the holiday shift. By agreement between the employer and the majority of employees concerned, the shift which has the minor portion falling on the public holiday may be regarded as the holiday shift instead. (f) The rates in clause 24.5 are in substitution for and not cumulative upon the shift rates
prescribed in clause 24.3.

24.5 Rate for working on Sunday and public holiday shifts

(a) A continuous shiftworker must be paid 200% of the ordinary hourly rate for work on a rostered shift the major portion of which is performed on a Sunday or public holiday.
(b) A shiftworker, on other than continuous shiftwork, must be paid 200% of the ordinary hourly rate for all time worked on a Sunday and 250% of the ordinary hourly rate on a public holiday.

(c) Where shifts start between 11.00 pm and midnight on a Sunday or public holiday, the time so worked before midnight does not entitle the employee to the Sunday or public holiday rate for the shift.

(d) The time worked by an employee on a shift starting before midnight on the day preceding a Sunday or public holiday and extending into the Sunday or public holiday must be regarded as time worked on the Sunday or public holiday.
In addition, under Section 20 of the Award subsection 20.2 states as follows:
Wet places [20.2(f)(iv) varied by PR729332, PR740757 ppc 01Jul22]
An employee working in any place where their clothing or boots become saturated by water, oil or another substance, must be paid $0.72 per hour extra. Any employee who becomes entitled to this allowance must be paid this allowance only for the part of the day or shift that they are required to work in wet clothing or boots. ꞏ Clause 20.2(f)(iv) does not apply to an employee who is provided by the employer with suitable and effective protective clothing and/or footwear

I believe that it is quite clear that GMN/Vegie Prepie have not been compliant with sections of the Award. However, any calculation of monies outstanding and owed becomes fraught with difficulties.
First, the correct base rate of pay needs to be established properly because all penalties and entitlements are calculated from the base rate of pay.
Therefore, I request a rationale for why the base rate of my pay was $23 31 plus 25% loading for casual per hour.
Second, the lack of clarity on the weekly payslips in terms of the breakdown of hours means again, that any calculation is moot until a detailed record of hours worked, for example, Sunday hours is available.
Therefore, I request a full and open breakdown of hours for each day worked from 21 st December 2021.
Some calculations are more transparent and easier to resolve. For example, the rate for “wet places”. Under the Award (Section 20.2) and as part of Workplace Health and Safety the employer is required to provide suitable and effective protective clothing and/or footwear otherwise an allowance of 72cents per hour should be paid.
*1509 hours work X 72cents = $1,086.48
The *1509 hours is a guesstimate only, given the inadequacies of your payslips.

Further calculations of monies outstanding and owed will depend on your provision of complete and accurate record that conform to the Act and Award. I would expect these records to be provided within 7 days (cob 5.12.2022) so that this dispute can be resolved as quickly as possible.

There is one last issue. I require proof that Superannuation Payments have been made.
Yours faithfully,
Oliver Petrie”

On 29 November 2022, Ms Rigato sent Mr Petrie correspondence by email titled “Letter_Response to Query re Applicable Industrial Instrument and wages v2.pdf”. The email simply attached a letter Ms Rigato received from Ms Lisa Dwyer, HR & Business Services Manager of Brismark. The correspondence is extracted below:

“Dear Sue

SUBJECT: Applicable Industrial Instrument

As per our discussion regarding a query from a former employee, who was engaged by GMN/Vegie Prepi, commencing 21 December 2021 as a Casual Level 1 Storeworker as per Jakes Trading Corp Pty Ltd t/a GMN/Vegie Prepi Employee Collective Agreement 2009. A copy of which is provided to all employees on commencement.
Point One
The Employee Collective Agreement 2009 referred to above was originally based on the Brisbane Market Award, passed the no-disadvantage test and was approved for use on 25 June 2009. As per clause 1.2 Period of Operation ‘…the Agreement has passed the no-disadvantage test and shall remain in force for a nominal period of (5) five years’
The date is ‘nominal’ because if that date comes and goes then the Employee Collective Agreement does not automatically terminate and will continue to ‘roll on’ indefinitely unless terminated or a new agreement is negotiated.
This also means that the base terms and conditions of employment that are contained continue to apply i.e. casual loading, penalty rates etc.
Point Two
In reference to the above, the only requirement is that the business needs to maintain the base wage rates in line with the applicable Modern Award, which in this case is the Storage Services and Wholesale Industry Award 2009. Consequently, all businesses are provided with updated wages tables, usually prior to 1 July each year in line with increases to the National Minimum Wage and the base rates in the Modern Awards.
The base rate increases in the applicable Modern Award are also applied to the Agreement base rates. Therefore, the base rate of the Agreement is not less than the base rate of the Award.
Point Three
As per point one/two – The base terms and conditions of employment contained in the Agreement continue to apply i.e casual loading, penalty rates, only the base rates have to be in line with the applicable Modern Award.
Point Four
Food, Beverage, and Tobacco Manufacturing Award
As previously mentioned, the applicable industrial instrument is Jakes Trading Corp Pty Ltd t/a GMN/Vegie Prepi Employee Collective Agreement 2009 and for the purpose of wage rates the applicable Modern Award applied is the Storage Services and Wholesale Industry Award 2009.
The Food, Beverage, and Tobacco Manufacturing Award does not apply to your workplace, therefore no terms or conditions of employment contained in this award are applicable to staff employed at GMN/Vegie Prepi.
Point Five
Pay Slips/Hours of Work
As per the Fair Work Ombudsman, pay slips have to cover details of an employee’s pay for each pay period. For example:

· Employer and employee’s name

· Employers ABN

· Pay Period

· Date of payment

· Gross and net pay

· If the employee is paid an hourly rate:

· The ordinary hourly rate

· The number of hours worked at that rate

· The total dollar amount of pay at that rate

· Any superannuation contributions paid for the employee’s benefit ie the amount of contributions paid during the pay period or the amount of contributions that need to be made

For noting, any loadings (including casual loading), allowances, bonuses, penalty rates etc can be separated out from an employee’s ordinary hourly rate, however this is not a requirement.
Hours of work, other than total hours worked in a pay period, are not required to be recorded on pay slips, this is either recorded through paper-based time sheets or electronic system.
I note as per our conversation, GMN/Vegie Prepi have an electronic clocking system that provides hours of work that is then applied to their payroll system for calculation of wages. Unfortunately, the current electronic clocking system has broken down and detailed information regarding days, start and finishing times can no longer be retrieved, only the total hours that were transferred into the payroll system and identified on the pay slip for each pay period.
Point Six
Superannuation
As per the Australian Taxation Office, Superannuation has to be paid at least every 3 months into any employee’s nominated account. The amount of superannuation that has been paid or is to be paid during a pay period should be shown on the pay slip.
Quarterly payment is made as follows:

Quarter Period Payment due date

1 1 July – 30 September 28 October

2 1 October – 31 December 28 January

3 1 January – 31 March 28 April

4 1 April – 30 June 28 July
If the employee thinks there is an anomaly, noting the above quarterly payment dates and the payments having been made by the business, I would recommend they check with their nominated superannuation fund.
If you require any further assistance regarding the information provided, please let me know so I can assist you in resolving the issue in the best interest of all parties.
Yours sincerely
Lisa Dwyer
HR & Business Services Manager”

On receipt of Ms Rigato’s email attaching the Brismark correspondence, Mr Petrie filed his dispute application before the Commission. He stated, “I view this response as a failure to engage in meaningful discussion (for example, there is no indication to formalize this matter as a dispute) and I appeal to the Commission to intervene in this matter.”

On 13 March 2023, I caused my chambers to write to the parties advising that I was not satisfied with the material filed by the Respondent. Particularly, I did not have relevant evidence before me in respect of the Respondent’s argument that the employment ended on or around 15 November 2022. I noted that Ms Rigato had not made a proper witness statement. I also noted that there is no evidence from the Respondent as to what Mr Petrie’s shifts looked like for that particular week, nor was there a witness statement from Mr John Meredith to assist. Accordingly, I requested that the Respondent address my concerns in respect of the evidence filed to date.

As a result, the Respondent filed a supplementary witness statement of Ms Rigato and a witness statement of Mr Meredith.

Second witness statement of Sue Rigato

Ms Rigato is the co-owner and Director of the Respondent.

Ms Rigato stated that Mr Petrie commenced employment with the Respondent on 21 December 2021, where he was engaged as a casual employee in the position of Night Fruit and Vegetable Process Worker. His duties included slicing and dicing product, using machinery, packing produce into bags, and making up orders. Mr Petrie’s hours of work varied from week to week depending upon the Respondent’s operational requirements. Ms Rigato stated that Mr Petrie remained as a casual employee until the last shift which he worked on 14 November 2022.

Ms Rigato stated that Mr Petrie’s employment was covered by the Agreement.

On 15 November 2022, Ms Rigato was at work, and she noticed that Mr Petrie was not there. She spoke with Mr Meredith who confirmed that Mr Petrie did not attend work for his rostered shift on 15 November 2022.

On 16 November 2022, Mr Meredith informed her that Mr Petrie had not attended work for his rostered shift that night. Mr Meredith told her that he had not heard anything further from Mr Petrie after he sent his text prior to commencing his shift on 15 November 2022 saying that he was going home.

On 17 November 2022, Ms Rigato noticed that Mr Petrie was not at work again. Mr Petrie did not contact the Respondent to explain why he was not attending work.

Given that Mr Petrie was not available for work for three consecutive shifts, Ms Rigato deemed that Mr Petrie did not want to work for the Respondent any further. She sent a text message to Mr Petrie on 17 November 2022 at 2:57am asking, “Hi Ollie I understand that you want to move on, could you pls bring back your glove and we will finalise your pay on Friday. Thanks heaps Sue”.

Ms Rigato noted that Mr Petrie had a safety glove which was provided to him by the Respondent, and it was that glove that Ms Rigato had sought to have returned if he no longer wished to work for the Respondent.

Ms Rigato said she received a text message from Mr Petrie on 17 November 2022 advising that he will return the glove. Ms Rigato advised she then finalised his pay and provided his payslip as required.

Evidence given during the hearing

In evidence given during the hearing, Ms Rigato stated that she relies on Mr Meredith to coordinate hours of work with casual employees. She understood that employees are verbally informed of their starting and finishing times. Their starting times are quite regular, however their finishing times might vary. I had the following exchange with Ms Rigato:[8]

Commissioner: So you've sent the text, 'Hi Ollie, I understand that you want to move on. Could you please bring back your glove and we'll finalise your pay on Friday. Thanks heaps, Sue.' What would finalising his pay mean?
Ms Rigato:Well, that would be his final pay and that is it. There's no more employment, further employment.

Commissioner:              And he's a casual employee?
Ms Rigato:  Correct.
Commissioner:              So finalising means what?
Ms Rigato:It means your final pay, that there's no more pay or work after that.

Commissioner:              It was a question, wasn't it, or a statement?
Ms Rigato:  Both.
Commissioner:              And bringing back his glove, why would he need to bring it back?
Ms Rigato:Because we supply the glove. They are stainless steel mesh glove and they're worth over $100 for these gloves, and then they are passed on for the - to another person once they leave.

Commissioner:              So they can be used by subsequent people?
Ms Rigato:  Absolutely, yes.
Commissioner:              And he didn't respond other than - - -?
Ms Rigato:  He did respond.
Commissioner:              - - - other than he would return his glove, and he didn't return his glove?
Ms Rigato:No, he didn't, but he - no, he didn't return his glove. But by him saying 'I'll return the glove' I knew that he wouldn't be back.

Commissioner:              You considered it the end, did you?
Ms Rigato:  Correct.
Commissioner:              Is there any codes on the payroll for example where something is input when you consider employment has come to an end?
Ms Rigato:No.

Commissioner: So how does the payroll know when somebody is no longer an employee?
Ms Rigato:Because it's my sister. So I just tell her that that's his final pay.

Commissioner: With a casual there's no annual leave for example to wrap up, it's just paying the wages that he earned?
Ms Rigato:Correct.

Commissioner: And your sister doesn't do anything with payroll like close somebody off for example?‑‑‑(No audible reply.)

You will need to give an oral answer?

Ms Rigato:No. Sorry. No, I just told her that he'd finished up, this will be his final pay, and she said 'Okay'.

Commissioner:              When do you think you did that?
Ms Rigato:  When did I do that?
Commissioner:              Yes?
Ms Rigato:I did it on the day that I - when she got in, she starts at about 9 o'clock in the morning, and I let her know then.

Commissioner: You did that orally, did you?
Ms Rigato: Yes.

In cross-examination, the following was put and answered:[9]

Mr Petrie:….Getting a text message from the general manager of the business basically if it was John's job to inform me that it was my last shift and all that sort of stuff why did it go to you?
Ms Rigato:Because it's my business.

Mr Petrie:Because I basically take that as, well the general manager's contacted me, so that basically means I don't have a job (indistinct) if I wanted one?
Ms Rigato:Ollie, you could have responded saying, 'I have intentions of returning', or picked up the phone. I mean you're making it as if I'm never there. You know I was always at work. You could walk into my office any time and speak with me. You're making it as if I'm never available, which I'm probably the most available person that there is.

Mr Petrie:That's not the point. That's not the point that I'm asking. You've just tried to point it off to John saying it was his job and his responsibility to do the rosters and everything like that?
Ms Rigato:Correct, and it is.

Mr Petrie:So it was his job to contact me and ask what was going on, not yours, so basically - - -?
Ms Rigato:Not necessarily. I'm the owner of the business, I can make that decision.

Evidence of John Meredith

Mr Meredith is a Supervisor with the Respondent and has held the position since 11 October 2021.

Mr Petrie was employed by the Respondent on a casual basis. Mr Petrie reported to Mr Meredith during his employment and was required to notify Mr Meredith if he would not be attending a rostered shift.

On 15 November 2022, Mr Petrie was rostered to attend work at 10:00pm. On this day, at 8:10pm, Mr Meredith received a text message from Mr Petrie stating, “Going home”. Mr Petrie did not attend work during the rostered shift.

Mr Meredith noted that Mr Petrie did not attend work on his next rostered shift on 16 November 2022. Mr Petrie did not contact Mr Meredith to advise he would not be attending his shift on this day.

Mr Meredith confirmed Mr Petrie’s non-attendance with Ms Rigato.

Mr Petrie had no further contact with Mr Meredith following the text message he sent on 15 November 2022.

Evidence given during the hearing

The following evidence was given by Mr Meredith during the hearing:[10]

Commissioner: …Tell me more about this way of asking people to come to work?

Mr Meredith: …. Since I took over the role of the manager of the prep room, the nightshift, any employment or any new employees respond or apply to an advertisement that has the actual hours in terms of the start times for particular days, and it's explained that the end time will vary depending on the demands and the workload of the business. As it's been mentioned we have some people that work three days a week, some people that work the full five days a week, and those - basically those positions or those shifts are set in stone with the exception of public holidays. And occasionally as there was one instance where we did push the start time back an hour because - - -

Commissioner: So casual employees know that I'm going to come into work on Thursday, I'm going to work - - -?
Mr Meredith: At 5 pm and, yes, definitely, Thursday 5 pm, Saturday - sorry, Sunday 5 pm, Monday 9 pm, Tuesday 9 pm now, Wednesday 9 pm, and then back to the 5 pm on Thursday, and that's set in stone.

Commissioner: So they know that unless they indicate that they're unavailable?
Mr Meredith: Exactly, yes, and that's not me giving them information.

Commissioner: So you don't have to remind them, nag them, tell them?
Mr Meredith: The only time that I put any effort into, how would you say, letting people know when their start times, because it would vary, is the public holidays, and to the point where I actually do a typewritten piece of paper with the exact - because obviously doing nightshift it can be a little bit confusing what days the public holidays relate to our trading hours. So I get it typed up and then hand a copy out to everybody.

Commissioner:           So what days of the week did Mr Petrie work?
Mr Meredith:             Five days a week.
Commissioner:           Sunday until - - -?
Mr Meredith:             Sunday to Thursday.
Commissioner:  Right. So you knew that and he knew that?
Mr Meredith:  Correct.
Commissioner:  And you didn't tell him each day - - -?
Mr Meredith:  I didn't tell anyone.
Commissioner:  - - - 'Are you coming in tomorrow? I need you tomorrow'?
Mr Meredith:  I didn't do that for anyone.

Commissioner: He last worked on the 14th and he sent you a text, didn't he?
Mr Meredith: That was his last shift.

Commissioner: To say, 'Going home' - on the 15th. He arrives at 8, but it's at 10. So what happened there?
Mr Meredith: Yes. There was a pushback of that Wednesday shift, or Tuesday night, sorry, for the Wednesday, just because it had become somewhat quieter earlier in the new year, and there wasn't enough hours for everybody to get reasonable hours. So it's easier to start everybody an hour later to preserve what hours there are.

Commissioner: Did you tell him?
Mr Meredith: I did tell everybody. I'm not too sure whether he was in the building at the time. He was on shift that night, and everyone else got the information. I must admit I probably didn't walk around and say it to everybody individually, but at the talk - - -

Commissioner: He's arrived super early, so he's probably right in that he didn't know?
Mr Meredith: Well, that's right, but my - and I can't say this for a fact because I don't have access to the payroll information as to whether he was on shift the Wednesday prior when that decision was made and that communication to the rest of the staff, but everybody else that worked the previous Wednesday was aware of it, and, yes, arrived at the correct revised starting time.

Commissioner:  So he sent a text saying 'Going home'?
Mr Meredith:  Yes.
Commissioner:  And you thought that pertained to that night?
Mr Meredith:  Yes, I did.
Commissioner:  And then when he didn't arrive the next night what did you think?

Mr Meredith: I must admit I didn't even think to start with, I was sort of busy dealing with other things. Yes, when I realised that he hadn't shown up based on the previous evening's correspondence I assumed that he didn't want to work anymore.

Commissioner: You assumed that?
Mr Meredith: Yes, based on the previous text and the fact that he hadn't shown up the following night.

Commissioner: Why didn't you text him?
Mr Meredith: I just didn't have time to be honest. I'm dealing with a lot of other issues.

Commissioner: You told Ms Rigato that that was your view?
Mr Meredith: What's that? No, I didn't. No, I just passed the information on.

Commissioner: So it was Ms Rigato who determined that he wanted to move on; is that right, not you?
Mr Meredith: Yes. I didn't send a text, Commissioner, so, no.

Commissioner:  You didn't convey that?
Mr Meredith:  No, not at all.
Commissioner:  You just said, 'He's not here'?
Mr Meredith:  I just gave the information, yes.
Commissioner:  And it was Ms Rigato who identified that he wasn't there on the 17th?
Mr Meredith:  Correct.

Commissioner: So it was her assumption and not yours that Mr Petrie didn't want to be there?
Mr Meredith: Well, I shared a similar assumption based on the fact that - yes, the fact that he hadn't shown up, definitely. It doesn't show that you want a job.

Commissioner:  You felt that he didn't want a job?
Mr Meredith:  Yes.
Commissioner:  But you didn't convey that to Ms Rigato?
Mr Meredith:  To be honest with you I don't recall. I just remember passing the information on. Sometimes I don't have, yes, a lot of time to maybe communicate as well as I would like to, particularly with the boss, but that's just from business pressures and having a lot of responsibility dealing with - - -

Commissioner: When did you become aware that Ms Rigato had sent the text to Mr Petrie?
Mr Meredith: I think the next shift she conveyed that to me.

Commissioner: And did she convey that Mr Petrie had said he would return his glove?
Mr Meredith: No. No, I didn't even pursue it to be honest. I think I was - - -

Commissioner:  Did she tell you - - -?
Mr Meredith:  I don't recall.
Commissioner:  - - - that Mr Petrie - you don't recall?
Mr Meredith:  No.
Commissioner:  Had you initiated text messages with Mr Petrie or it was always him telling you when he was unavailable?
Mr Meredith:           Correct. I think I maybe asked on one occasion.

Commissioner:  You were responsive to his text messages?
Mr Meredith:  I was always responsive. I acknowledged - - -
Commissioner:  But you didn't really text him?
Mr Meredith:  No, never had a need to.

Conduct following the hearing

The Respondent satisfied itself that Mr Petrie had been underpaid in accordance with the Agreement an amount of $6,985.58. I understand this underpayment is relevant to worked performed by him on Sundays and on public holidays. Following the hearing, the Respondent paid to Mr Petrie that amount, together with superannuation.

Mr Petrie’s evidence

Early on in this matter I alerted the parties to the jurisdictional issue as to whether Mr Petrie was an employee when he notified a dispute to the Respondent. Mr Petrie sent the following correspondence on 11 December 2022:

“Further to your email of 9th Dec 2022 I advise that I was still employed at the time of raising the issue. Regarding the issue as to whether or not the Dispute was raised ‘in accordance with the Dispute Settlement Procedure at Clause 2.1 of the Jakes Trading Corp. Pty Ltd t/a GMN/Vegie Prepi Employee Collective Agreement 2009, I can only state that I had never seen nor been given a copy of the agreement. It was only by chance, after having sent 2 emails, that I found the agreement. I can assure the Commissioner that neither I nor anyone I worked with was even aware that there was an EBA in existence…..”

On 3 January 2023, Mr Petrie forwarded an underpayment calculation which he valued at approximately $40,000.

Mr Petrie provided his submissions and evidence on 8 February 2023. In his evidence, he provides a timeline which I have summarised below:

Date	Event
Tuesday, 8 November 2022	Mr Petrie notified his supervisor he was taking the day off to take his father to the hospital for Day Surgery at 6:00am. Mr Petrie collected his father at 3:00pm.
Wednesday, 9 November 2022	Mr Petrie completed a 3 hour shift, where he complained to his Supervisor about “short hours”. Mr Petrie claimed it was not for the first time.
Thursday, 10 November 2022	Mr Petrie attended work at 5:00pm, his usual start time. He was informed by the Supervisor that work would not start until 8:00pm. Mr Petrie understood that a text to this effect had been sent to the other members of the workforce. Mr Petrie, however, said he has not received such text. Mr Petrie told the Supervisor he had enough of being messed around with and went home.
Friday, 11 November 2022	Mr Petrie’s day off. Mr Petrie took this day to explore his options. He said that during the previous 6 months, he had lodged 5 complaints about the Respondent through the website of the Fair Work Ombudsman. Mr Petrie lodged these complaints anonymously, as the website allows, on the basis that if he was to leave his name, in all likelihood, he would lose his job. Mr Petrie said that it was increasingly obvious that the Fair Work Ombudsman was doing nothing, even though the complaints consistently highlighted the non-payment of wages, penalties and entitlements. Mr Petrie described the Respondent’s act as exploitation of the Night workforce. The Fair Work Ombudsman must have a record of these complaints.
Saturday, 12 November 2022	Mr Petrie’s day off.
Sunday, 13 November 2022	Mr Petrie completed a 10 hour shift.
Monday, 14 November 2022	Mr Petrie completed a 4 hour shift.
Tuesday, 15 November 2022	Mr Petrie arrived at work at 8:00pm to be informed by his Supervisor that the day was not scheduled to start until 10:00pm. Mr Petrie sent the Supervisor a text message, stating “Going home”.
Wednesday, 16 November 2022	Mr Petrie was told by other members of the workforce that his shift was going to be a short shift before he was to leave for work. As a result, Mr Petrie decided he was not going to work that night.

On 17 November 2022, Mr Petrie received a text message from Ms Rigato at 2:58am which read, “Hi, Olie. I understand that you want to move on. Bring back your glove and we will finalise your pay on Friday. Thanks heaps, Sue”.

Mr Petrie responded at 3:37pm, stating “Hi, Sue, on advice from the fair work commission I will be forwarding a letter to you in due course outlining my claim for outstanding entitlements.”

Ms Rigato responded to Mr Petrie’s text message shortly after at 3:43pm, asking that he does and claimed that he had been paid correctly as per the Agreement.

In respect to the above timeline, Mr Petrie’s evidence is as follows:

(a)He was being increasingly disillusioned by the short shift hours and the continuing non-payment of entitlements. He had pointed out previously to the Supervisor that some of the workforce travelled long distances and 3 hour shifts were not viable.

(b)He complained three times between the period of 8 November 2022 and 17 November 2022 to the Supervisor about these issues. He stated that he had raised these concerns earlier in the year and his complaints were ignored by the Supervisor. At no time was a Dispute Resolution mechanism was mentioned to him.

(c)At no time did he state he was quitting work. He noted he was engaged as a casual employee, which implied that he is under no obligation to turn up for a shift. That said, he made every effort during the year to turn up on time.

(d)He considered Ms Rigato’s text message as a threat.
(e)He considered that his efforts through the Fair Work Ombudsman appeared to be falling on deaf ears and he said he was increasingly concerned not only about what to do next, but also how to do it.

As to Mr Petrie’s contention that the work performed by him was covered by the Award and not by the Agreement, Mr Petrie referred to a promotional video on YouTube. Mr Petrie contends that it is clear from the promotional video that the work being undertaken, being preparing and processing food (fruit and vegetables), is kitchen work taking place in a kitchen.

Mr Petrie stated that the Respondent’s business is “to do processed fruit and vegetables”. He notes there is no evidence that any employee is a Store Worker (cl 1.4.3 of the Agreement), Salesperson (cl 1.4.4 of the Agreement) or an Office Worker (cl 1.4.5 of the Agreement).

According to Mr Petrie, the majority of employees engaged by the Respondent are kitchen hands working in a kitchen. Mr Petrie notes that clause 4.2 of the Award covers:

“Food, beverage and tobacco manufacturing means the preparing, cooking, baking, blending, brewing, fermenting, freezing, refrigerating, decorating, washing, grading, processing, distilling, manufacturing and milling of food, beverage and tobacco products….and the ancillary activities such as:
a.   the receipt, storing, and handling of ingredients and raw materials….
b.   the bottling, canning, packaging, labelling, palletising, storing, preparing for sale, packing and despatching…
c.   the cleaning and sanitising of tools equipment and machinery used to produce food, beverage and tobacco poducts…”

Mr Petrie claims that definition would cover the majority of the Respondent’s employees. During his interview, he was asked about his kitchen skills. He stated that he was not informed of the existence of the Agreement.

In response to the witness statements of Ms Rigato and Mr Meredith, Mr Petrie stated:

(a)During the 11 months of working with the Respondent, he has not once received a roster, nor did he ever see a roster. To his knowledge, neither have other employees working night shift. He was a casual employee and every shift that he worked was open-ended.

(b)He disagrees with Mr Meredith’s contention that he was required to notify if he was not going to work a rostered shift. He stated that he is casual and there was no roster. He contends he was one of very few employees who did inform of unavailability, and he did this to be courteous.

Evidence given during the hearing

It is necessary to note that I had not been informed prior to the hearing or even at the hearing that Mr Petrie had commenced his written correspondence disputing the issue of the Award and Agreement coverage prior to 27 November 2022. I later learned he had sent written correspondence as early as 22 November 2022.

The following evidence was given by Mr Petrie during the hearing:[11]

Commissioner: Mr Petrie, when do you think the employment came to an end?
Mr Petrie:Basically after I received the note saying that I'd asked (indistinct) moved on, the text message saying that, yes.

Commissioner:           That's on 17 November?
Mr Petrie:                   Yes.
Commissioner:           So you know that doesn't help your case here?
Mr Petrie:                   Well, it's just the truth. That's about all I can say.
Commissioner:           And you were asked to return your glove?
Mr Petrie:                   I was.
Commissioner:           What does the glove look like? Is it - - -?
Mr Petrie:It's a mesh glove, basically used for butchering, the vegetable (indistinct), anything to do with machinery pretty much.

Commissioner:           Are you right-handed?
Mr Petrie:                   Yes.
Commissioner:           So you wear it on your left hand?
Mr Petrie:                   Yes.
Commissioner:           To make sure you don't cut your fingers?
Mr Petrie:Yes, basically so – it's meant to be able to stop you from losing your limbs pretty much.

Commissioner:           And did you return the glove?
Mr Petrie:                   I haven't, no. Not yet, but I will.
Commissioner:           And you didn't ask what was meant by that text message?
Mr Petrie:It was pretty clear that they thought I'd moved on. I hadn't, but as far as I'm concerned it was just – it wasn't really worth any – I mean, yes, not really worth going back to work for three‑hour shifts. So, yes, that's basically it, your Honour.

Commissioner: And then 10 days later you write the email because you think that they shouldn't have been applying that enterprise agreement to your employment?
Mr Petrie:Well, it was completely wrong to begin with, and I didn't get a contract at the start of the employment. We did ask on several occasions for them to give me the contract I was meant to be working under, and never received it; still haven't.

Commissioner:           You've seen my emails, haven't you?
Mr Petrie:                   Yes.
Commissioner:           It's not wrong. They are lawfully entitled to use this zombie agreement?
Mr Petrie:No, I completely understand that, but again, like, every place I've worked I've received a contract. I probably wouldn't have worked for them as long as I had if I had've known that that was the contract that I was working under.

Commissioner: And you knew that when you worked the odd hours, et cetera, that you weren't getting penalty rates that you might otherwise under an award?
Mr Petrie:I did, and I was happy not to receive those when the hours were decent, but then having to turn up for a three‑hour shift and then not any indication that it was going to be three‑hour shift and then be sent home, it sort of defeats the purpose of actually turning up to work, because I spent pretty much half the pay getting to and from work.

I questioned Mr Petrie whether he informed the Respondent on 21, 22, 23 or 24 November 2022 he was available to work? He said he never had to as the only correspondence regarding rosters had been him advising that he was unwell to attend for work.

Mr Petrie confirmed that he didn’t push back on Ms Rigato’s text message to him on 17 November 2022. He stated that by this time he had enough and was upset with receiving three-hour shifts. He stated it was not worth his while to attend if he was only receiving three-hour shifts.

When asked why he didn’t attend for work on 16 or 17 November 2022, Mr Petrie stated:[12]

“No, I didn’t, but again I was a casual employee, so I didn’t have any legality for turning up.”

The following evidence was given:[13]

Commissioner: Yes. You've also signed the application form to the Commission on 29 November as an ex‑employee. I'll just read exactly – you've said 'ex‑food processor.' So at the time of making application - - -?
Mr Petrie:Well, because on the 29th I wasn't working for them anymore.

Commissioner: When do you consider that you were no longer working for them?
Mr Petrie:Well, pretty much that day, because I was waiting to see what Fair Work would say, and then - - -

Commissioner: Well, your earlier evidence was that you considered on 17 November that you weren't an employee?
Mr Petrie:Well, physically, no, I wasn't, because I wasn't at work, but on the books I was still an employee.

Commissioner: I'm interested in the employment relationship. When do you consider the employment relationship came to an end?
Mr Petrie:My employment relationship pretty much came to an end when I received a message saying that you've moved on, because that made me pretty much assume that I wasn't welcome back.

Commissioner: And you didn't correct them?
Mr Petrie: I didn't see any point.

Mr Petrie stated that he raised his concerns with Mr Meredith relevant to only receiving three-hour shifts. He did not raise with Mr Meredith his concerns with respect to the Award or Agreement.[14]

In submissions made following the hearing, Mr Petrie contends that he was raising the dispute with Ms Rigato from 22 November 2022 when he was still employed.

The Respondent’s submissions following receipt of all evidence

Upon receiving Mr Petrie’s further evidence and submissions following the hearing, the Respondent submitted the following:

(a)Mr Petrie gave evidence on 17 March 2023 that he was employed as a casual employee.

(b)Mr Petrie further gave evidence on 17 March 2023 that he did not work for the Respondent after 15 November 2022.

(c)As previously submitted, a casual employee’s employment ends at the completion of each engagement. Accordingly, Mr Petrie’s employment with the Respondent ceased on 15 November 2022.

(d)The additional materials provided by Mr Petrie identify that the earliest time that he raised a dispute with the Respondent was in his correspondence to Ms Rigato dated 22 November 2022.

(f)At no time earlier than 22 November 2022 did Mr Petrie raise the dispute with the Respondent.

(g)Mr Petrie had ceased being an employee of the Respondent at that time and lacked the capacity to bring a dispute under cl 2.1 of the terms of the Agreement.

(h)Mr Petrie’s application to the Fair Work Commission regarding the dispute similarly was made after the cessation of his employment, and he lacked the capacity to bring the dispute.

(i)It is noted that Mr Petrie includes an email from the Fair Work Ombudsman dated 16 November 2022. Enquiries made to the Fair Work Ombudsman regarding award conditions to amount to the raising of a dispute with the Respondent in accordance with the Disputes Settlement Procedure of the Agreement or the filing of a Dispute with the Fair Work Commission.

(j)It is further submitted that the email and the telephone discussion to which it refers occurred on 16 November 2022 and, as such, occurred after the cessation of Mr Petrie’s employment.

Mr Petrie’s further submissions

Following the Respondent’s submissions on 21 March 2023, Mr Petrie provided further submissions as follows:

(a)Mr Petrie tried, on a number of occasions, to raise the dispute, not least through Mr Meredith.

(b)If, as suggested, a casual employee’s employment ends at the completion of each engagement, then the majority, if not all, of the employees of the Respondent would be technically unemployed on a regular basis, in which case there would be little if any opportunity for an employee to raise a dispute whilst employed.

(c)Mr Petrie repeated that at no time did he resign or offered a formal resignation.

(d)Mr Petrie also repeated that the first he knew about the termination was from Ms Rigato’s text message on 17 November 2022. In Mr Petrie’s opinion, this raises the spectre of “unfair dismissal”. Mr Petrie said that it could be viewed as a “pre-emptive” strike by Ms Rigato who knew that Mr Petrie was seeking advice because he wished to raise a dispute.

(e)Ms Rigato had the benefit of knowing that there was an Agreement in place, whereas Mr Petrie claimed to have no idea that such a thing existed.

Consideration

It is necessary to determine when Mr Petrie’s employment came to an end. To do so, an important consideration is to examine the nature of the employment relationship between Mr Petrie and the Respondent.

For a period of 11 months, Mr Meredith verbally informed Mr Petrie of his nightly shifts, typically worked Sunday to Thursday. Rostered shifts of casual employees were not published. There was an expectation that if an employee was verbally informed of their casual shift, they would attend. Mr Petrie made it a practice of informing Mr Meredith of occasions when he was unable to attend a verbally rostered shift.

The text communications between Mr Petrie and Mr Meredith were largely one-sided, with Mr Petrie, at various times, informing Mr Meredith of his unavailability when life’s vicissitudes stood in the way of him attending for work. Mr Meredith did not engage in regular text messaging of Mr Petrie.

Accordingly, there was an expectation that Mr Petrie would be at work when he had been verbally requested by Mr Meredith to attend for work, unless he advised otherwise.

Mr Petrie last performed work on 14 November 2022. On 15 November 2022, he expected to commence work at 8:00pm, however he had not been informed that his starting time had been pushed back to 10:00pm. Understandably, he was upset by this. He was present at the location of work and decided at 8:10pm to announce he was going home.

Mr Petrie knew that was rostered to work on 16 November 2022 and expected by Mr Meredith to attend for work. He decided not to inform Mr Meredith of his non-attendance. His evidence is that he did so because he was a casual employee and he had no obligation to attend for work. He also stated that he chose not to attend as he had been informed by other employees that it was going to be a short shift.

On account of Mr Petrie not working the evening of 15 November 2022 and 16 November 2022, Ms Rigato made an assumption that he no longer wished to work for the Respondent. Given that Ms Rigato sent the text message to Mr Petrie at 2:57am on 17 November 2022, Ms Rigato only permitted two shifts, not three as per her evidence, being the evenings of 15 and 16 November 2022 to make the conclusion that he no longer wished to be employed. On any fair view, Ms Rigato’s assumption was hasty and unreasonable.

On receipt of Ms Rigato’s text message, Mr Petrie could have asserted that he remained employed and had been unavailable or chosen not to work the past two days. He could have corrected Ms Rigato and confirmed that he remained a casual employee. Instead, he stated that he had received advice from the Fair Work Commission (in fact it was the Fair Work Ombudsman) for a claim of outstanding entitlements and will return the glove.

I am satisfied that Mr Petrie considered his employment had come to an end on receipt of the text message from Ms Rigato. Mr Petrie gave exactly that evidence during the hearing, even after knowing that it would not support his case before the Commission. Mr Petrie’s evidence on this during the hearing was unequivocal and repeated. He had been alerted to this issue in correspondence sent from my chambers and it was the issue that was squarely before the Commission for consideration.

I accept Mr Petrie’s evidence that he considered the employment had come to an end on receipt of the text message on 17 November 2022. He did nothing to agitate that it was still on foot. The Respondent considered that the employment had ended at that time and Mr Petrie’s payroll was finalised, noting that would require nothing further than paying him for the work he had already performed. There was no payroll ‘trigger’ on account of his casual employment.

I therefore find that the employment relationship came to an end on 17 November 2022. I am not in agreement with the Respondent’s later submissions that the employment came to an end on 15 November 2022. It did not come to an end until Ms Rigato sent the text message to Mr Petrie and he confirmed he would return his glove.

Mr Petrie did not raise a dispute with the Respondent about his alleged underpayment of wages at large, or under the Award he considered applied to him until he sent his written correspondence on 22 November 2022.

While I am satisfied that Mr Petrie complained to Mr Meredith about short shifts of three hours’ duration, and he did so during his employment, I am not satisfied that he raised with Mr Meredith the concerns the nature of the dispute before the Commission, or within his correspondence from 22 November 2022. There is no evidence, for example, of Mr Petrie asserting to Mr Meredith that the Award provides for a four-hour minimum shift as opposed to the three-hour shift he was sometimes rostered on for. His evidence is that he complained that the short duration of the shift was not economically worth his while given travel time and petrol costs.

Mr Petrie raised the following six issues as a dispute following his dismissal, noting his dispute involved ‘payment of wages’. None of these were raised during his employment:

1.   Base Rate of Pay
2.   Non payment of Sunday rates
3.   Non payment of Nightly rates
4.   Non payment of Public Holiday rates
5.   Non payment of overtime rates
6.   Non payment of Uniform Allowance/“wet places” allowance

The Commission must be satisfied that Mr Petrie was engaged in the dispute resolution process of the Agreement (or the Award if the Agreement did not cover his employment) before his employment was terminated. I cannot be satisfied. Accordingly, the question as to whether Mr Petrie was an employee of the Respondent at the time of raising the dispute must be answered in the negative.

Having answered the first question in the negative, it is not necessary to determine the industrial instrument covering the work performed by Mr Petrie during his employment.

There is no jurisdiction vested in the Commission to further deal with the application. The application is dismissed.

COMMISSIONER

[1] Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd

[2] PR973602 [2006] AIRC 483

[3] ING Administration Pty Ltd v Jajoo, Ramsin[2007] AIRC 773

[4] Mitchell v University of Tasmania[2022] FWCFB 165

[5] Kentz (Australia) Pty Ltd v CEPU [2016] FWCFB 2019

[6] CFMEU v Broadspectrum Australia Pty Ltd[2017] FWCFB 269

[7] CFMEU v Goonyella Coal Mines Pty Ltd [2015] FWCFB 5619

[8] Transcript PN 179 – 195.

[9] Transcript PN 201 – 204.

[10] Transcript PN 216 – 249.

[11] Transcript PN 29 – 42.

[12] Transcript PN 89.

[13] Transcript PN 90 – 94.

[14] Transcript PN 104.

Printed by authority of the Commonwealth Government Printer

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Citations

Oliver Petrie v Jakes Trading Corporation Pty Ltd T/A Gmn/Vegie Prepi [2023] FWC 769

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

0

Mitchell v University of Tasmania [2022] FWCFB 165

Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019

Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269

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