Pincott v PC Disposals Pty Ltd
[2013] QCAT 287
| CITATION: | Pincott v PC Disposals Pty Ltd [2013] QCAT 287 |
| PARTIES: | Treacey Leah Pincott (Applicant) |
| v | |
| PC Disposals Pty Ltd (Respondents) |
| APPLICATION NUMBER: | MCDO1786-12 |
| MATTER TYPE: | Other minor civil dispute matter |
| HEARING DATE: | 6 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | John Bertelsen, Adjudicator |
| DELIVERED ON: | 21 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application filed 14 June 2012 is transferred to the Magistrates Court of Queensland at Brisbane. 2. Proceedings in the said Court shall be taken to have commenced on 14 June 2012. 3. The applicant Treacey Leah Pincott shall be taken to have complied with all requirements of the Fair Work Act 2009 (Cth) for the commencement and hearing in the said Court of a small claims procedure, within the meaning of section 548 of the said Act. 4. Liberty to each party to apply for further directions upon 7 days notice in writing to the other party and to the Tribunal. |
| CATCHWORDS: | EMPLOYMENT – continuity of employment – applicability of relevant award – jurisdiction of Tribunal – transfer of proceeding Fair Work Act 2009 (Cth), s 548 JF Hodge Pty Ltd v Brown [2013] QCATA 36 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Treacey Leah Pincott appeared in person. |
| RESPONDENT: | PC Disposals Pty Ltd represented by Mr Peter Petz, Director |
REASONS FOR DECISION
Application
By application filed 14 June 2012 the applicant, Ms Pincott, seeks holiday entitlements and termination entitlements pursuant to her continuity of employment from 24 September 2007 through 14 October 2011 with firstly Brisbane Computer Recyclers, then Brisbane Computer Recyclers Pty Ltd and finally PC Disposals Pty Ltd, in the sum of $8,745.00.
Background and evidence
Ms Pincott commenced employment as bookkeeper with the business Brisbane Computer Recyclers on 24 September 2007. In 2008 that business was then conducted as Brisbane Computer Recyclers Pty Ltd which company was placed in voluntary liquidation on 30 June 2011. Ms Pincott continued employment with PC Disposals Pty Ltd, the successor to Brisbane Computer Recyclers Pty Ltd. Ms Pincott’s employment was terminated on 14 October 2011. Her wages were paid to that date. What was not paid at that time according to Ms Pincott was 22 days holiday pay at $25.00 per hour plus 17.5% loading, $5,175.00 (less $430.00 paid 25 October 2011), a net figure of $4,745.00 and four weeks termination pay being three weeks applicable to her total period of employment and one week on account of being over 45 years of age, a total of $4,000.00.
Subsequent to termination Ms Pincott made a claim under the General Employee Entitlements and Redundancy Scheme (GEERS) managed by the Federal Department of Education, Employment and Workplace Relations (the Department).
Based on information available to the Department it was determined that Ms Pincott was ineligible for assistance. Relevantly GEERS stated in correspondence to Ms Pincott:
GEERS assistance is available where there is no other source of funds to pay your outstanding employee entitlements. If your employers interests or assets have been sold or transferred to another business and you have accepted employment with the new operator of the business, the Department will not make a GEERS advance to you if the new employer has a legal obligation to recognise your outstanding employee entitlements.
Information you have provided to the Department indicates and the Department has been advised by the insolvency practitioner for Brisbane Computer Recyclers Pty Ltd, RE Murphy Chartered Accountant (AKA MDW Associates), that the business that you were previously employed with has been transferred to a new employer, PC Disposals Pty Ltd and that you continued working for the new operator of the business.
As such, your claim has been assessed in relation to the transmission of business and continuity of service provisions contained in the Fair Work Act 2009. Under these provisions your entitlements to annual leave have transferred to the new operator of the business, PC Disposals Pty Ltd, who has a legal responsibility to recognise your accrued employee entitlements. The insolvency practitioner has advised the Department that you do not have any unpaid wages outstanding.
That advice from the Department sits squarely with advice given to Ms Pincott in emailed correspondence of 4 November 2011 from RE Murphy and Co to Ms Pincott as follows:
We have been advised by the director that all employee entitlements were carried over to PC Disposals. Please advise if this is correct …
Mr Petz, former director of Brisbane Computer Recyclers Pty Ltd and director of PC Disposals Pty Ltd stated that all that was ever transferred from Brisbane Computer Recyclers Pty Ltd to PC Disposals Pty Ltd was credit card debt; that all matters pertaining to the liquidation of Brisbane Computer Recyclers Pty Ltd were handled by the lawyers and accountants. No material relating to continuity of employment of Ms Pincott or otherwise was produced by Mr Petz.
Rodgers Reidy Chartered Accountants took over from RE Murphy as the insolvency practitioners handling the voluntary liquidation of Brisbane Computer Recyclers Pty Ltd. Rodgers Reidy stated in an email to Ms Pincott of 27 February 2013 that “we have not been provided by the director (nor have we recovered from any other source) any “wages book” or any other hard copy records of employee wages or entitlements, other than data files for the MYOB Accounting System for the period immediately before the winding up of the company commenced (the latter being provided by the Director)”.
When asked whether her employment was governed by a modern award Ms Pincott answered yes although it was not clear which one.
In her GEERS claim Ms Pincott stated her job title as “office administration” and listed her most common duties as MYOB, reconciliation, banking, filing and client liaising. She did not list which award she was employed under.
In the recent appeal decision of JF Hodge Pty Ltd v Brown [2013] QCATA 36 the Appeal Tribunal, in referring to the absence of a reference in the Fair Work Act to Tribunals, stated:
While it does leave some room for enforcement of its awards by eligible state or territory courts, those entities are defined as District, County or local Courts, Magistrates Courts, or any other state or territory Court prescribed by the regulations. There is no regulation extending that definition to Tribunals in general or to QCAT in particular.
The Appeal Tribunal considered that state jurisdiction was residuary and limited to roles not traditionally covered by awards. In saying that the Appeal Tribunal recognised the small claims procedure for recovery of monies due under a fair work instrument to a limit of $20,000.00; that such claims must be brought in a State Magistrates Court or a Federal Magistrates Court.
The Appeal Tribunal’s decision effectively gives jurisdiction to a State Magistrates Court or a Federal Magistrates Court to hear claims up to $20,000.00 involving a modern award.[1]
[1] Fair Work Act 2009 (Cth), s 548.
Conclusions
Ms Pincott was employed continuously for the period 24 September 2007 through 14 October 2011. She was employed as a bookkeeper, her role being one of office administration.
As at the date of termination of employment no wages were owing to Ms Pincott. She asserted non payment of holiday pay and termination entitlements. Ms Pincott made a GEERS claim which was declined on the basis of “transmission of business and continuity of service provisions contained in the Fair Work Act 2009” rather than any suggestion that Ms Pincott was not covered by an eligible award and consequentially able to prosecute entitlements against her then current employer PC Disposals Pty Ltd.
Office administration is within the category of roles usually governed by modern awards. That her employment was covered by a modern award was confirmed by Ms Pincott. The Tribunal is satisfied that Ms Pincott’s employment was governed by a modern award made under the Fair Work Act 2009 (Cth). Such being the case Ms Pincott’s claim must be determined by a Court. QCAT is not a Court for the determination of an entitlement claim arising under a Fair Work Act 2009 (Cth) modern award.
Orders
The application filed 14 June 2012 is transferred to the Magistrates Court of Queensland at Brisbane.
Proceedings in the said Court shall be taken to have commenced on 14 June 2012.
The applicant Treacey Leah Pincott shall be taken to have complied with all requirements of the Fair Work Act 2009 (Cth) for the commencement and hearing in the said Court of a small claims procedure, within the meaning of section 548 of the said Act.
Liberty to each party to apply for further directions upon 7 days notice in writing to the other party and to the Tribunal.
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