Richard McConnell v SkyCity Darwin Pty Ltd - [2014] FWC 6872

[2014] FWC 6872

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Emilio Gonzadi; Adrian Butcher; Richard McConnell
v
SkyCity Darwin Pty Ltd
(C2014/5601)

COMMISSIONER MCKENNA

SYDNEY, 14 NOVEMBER 2014

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)].

[1] An application to deal with a dispute has been made pursuant to s.739 of the Fair Work Act 2009 (“the Act”) by Emilio Gonzadi (“the first applicant”), Adrian Butcher (“the second applicant”) and Richard McConnell (“the third applicant”) in relation to a dispute with SkyCity Darwin Pty Ltd (“the respondent”) concerning payments made to them apropos the SKYCITY Darwin Enterprise Agreement 2011-2015 (“the Agreement”). At its core, the dispute concerns the remuneration that has been paid by the respondent to the applicants - arising from contention about whether the Agreement is applicable to them. The applicants, through their representative, Lucio Matarazzo Pty Ltd, contend the respondent has inappropriately paid them outside the parameters of the Agreement - which the applicants also contend covers their employment. The respondent, through its representative, the Queensland Hotels Association, contends the applicants’ employment is not subject to the Agreement and payments have been made appropriately in all the circumstances.

[2] The dispute was the subject of settlement endeavours between the parties or the parties’ representatives, or both. A settlement agreement was reached in relation to that part of the dispute which concerned the first applicant. The dispute is not, however, resolved in relation to the second and third applicants (collectively “the applicants”).

[3] It seems to be the case that the applicants seek, if nothing else, the making of recommendations or the expressing of an opinion by the Commission; and the respondent does not object to that course. In this regard, I should note I would otherwise hold reservations about whether there is a proper basis to purport to determine the dispute between the applicants and the respondent to any putative finality - given that the characteristics of the application involve, in substance, an alleged underpayment of wages.

[4] A summary of the parties’ written submissions in support of their respective contentions is as follows (other than in relation to the first applicant, in relation to whom, as I have noted, settlement was reached).

Applicants’ submissions

[5] The second applicant submits his employment position of plumber is covered by the Agreement as does the third applicant in relation to his employment position of electrician. In this regard, the applicants rely on cl.4 (Application and Parties Bound) and Appendix A (non-gaming classifications) of the Agreement. The applicants relevantly have been employed during periods following the approval by the Commission of the Agreement.

[6] In support of their contentions, the applicants draw attention to that part of the Agreement containing provisions dealing with classifications in Appendix A. The applicants submit that on a consideration of the descriptions of the non-gaming classifications in Appendix A (as opposed to, for example, position titles), the respondent has made a “wrong assumption” in claiming that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 6872
Decision Date: 14 NOVEMBER 2014

CaseChat Overview and Summary

Richard McConnell has brought a case against SkyCity Darwin Pty Ltd, seeking to resolve a dispute concerning issues arising under an enterprise agreement and the National Employment Standards. The matter was heard in the Fair Work Commission. The primary legal issues before the Commission were whether the alleged contraventions of the enterprise agreement and the National Employment Standards occurred, and if so, what remedy, if any, was appropriate.

The Commission began by examining the evidence presented by both parties to determine if there was a breach of the enterprise agreement. It considered whether the employer had failed to adhere to the terms and conditions outlined in the agreement. Additionally, the Commission assessed whether the employer had contravened the National Employment Standards, focusing on the entitlements owed to the employee under the Fair Work Act. The analysis involved a detailed review of the evidence, including any relevant documentation and witness statements.

After thorough deliberation, the Commission found that there had been breaches of both the enterprise agreement and the National Employment Standards. The employer had not complied with specific provisions of the agreement, and had failed to provide certain entitlements as mandated by the National Employment Standards. Consequently, the Commission ordered the employer to remedy the situation by making appropriate payments to the employee, as well as imposing a penalty for the contraventions. The decision was grounded in the need to uphold the rights of employees under the applicable industrial instruments and to ensure compliance with legislative standards.

Orders