Pretorius v Daltons Carpet Tiles Pty Ltd

Re: PETER ANTHONY POULOS
And: WALTONS STORES INTERSTATE LIMITED
No. ACT 1 of 1983
6 IR 428
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Industrial Law - Employee employed in the Australian Capital Territory - Whether within classification in an award - Employee not shown to be member of registered organization party to the award - Whether entitled to the benefit of that award

Conciliation and Arbitration Act 1904, section 123

Seat of Government (Administration) Act 1910, section 5

Metal Trades Employers Association v. Amalgamated Engineering Union (1935) 54 C.L.R. 387

T.A. Robinson & Sons Pty. Ltd. v. Haylor (1957 97 C.L.R. 177

The King v. Kelly; Ex parte the State of Victoria (1950) 81 C.L.R. 64

Leontiades v. F.T. Mansfield Pty. Limited (1980) 43 F.L.R. 193

HEARING

CANBERRA

#DATE 10:2:1984

ORDER

The application be dismissed.

JUDGE1

This is an application by Peter Anthony Poulos ("the applicant") against his employer, Waltons Stores Interstate Limited ("the respondent"). The application is made under section 123 of the Conciliation and Arbitration Act 1904 ("the Act") which provides -

"An employee entitled to the benefit of an award may, at any time within six years from any payment becoming due to him under the award, but not later, sue for the amount of the payment in the Court, or in any other court of competent jurisdiction."

The reference in that section to "the Court" is, by virtue of section 118A of the Act, to be read as a reference to the Federal Court of Australia in its Industrial Division.

The applicant claims the sum of $9,031.40 alleged to be the amount underpaid between 20 November 1978 and 3 December 1982 and, in addition, an unspecified amount in respect of the period between 3 December 1982 and the date of the hearing of the action.

It is common ground that the applicant has been employed by the respondent since 20 November 1978. Prior to that time he was employed by Waltons Credits Limited as a home service representative (sometimes called a traveller caller). As such representative he was assigned a particular geographic area and he was required to call periodically at the houses within that area of persons who had an account with the company in order to collect monies owing and to endeavour to interest those persons in the purchase of other goods. He was paid a base amount weekly plus commissions.

During 1978 the applicant saw a newspaper advertisement for a store representative in the carpet department of the respondent and he was successful in obtaining a transfer to that position. He was informed by the operations manager of the respondent that in his new position he would be paid at the same rate as he received as a home service representative with Waltons Credits Limited with commission at one per cent.

There is in evidence a printed form of application for employment. On its face, which bears the date of…