Rooth v S. Brady Industries Pty Ltd Trading as Vehicle Relocators (No.2)

[2014] FCCA 2415

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROOTH v S. BRADY INDUSTRIES PTY LTD TRADING AS VEHICLE RELOCATORS (No.2) [2014] FCCA 2415

Catchwords:
INDUSTRIAL LAW – Ruling on quantum of award claims made by the applicant – both sides adopting methodology not based on the award found to be applicable by the court – court adopting parties’ methodology faute de mieux – claims determined. 

Legislation:  

Road Transport and Distribution Award 2010
Road Transport (Long Distance Operations) Award 2010, cl.13.4(b), 13.5(c), 22

Ray v Radano [1967] AR (NSW) 471
Poletti v Ecob (No 2) (1989) 91 ALR 381
Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406

Applicant: PAUL ROOTH

Respondent: S. BRADY INDUSTRIES PTY LTD TRADING AS VEHICLE RELOCATORS

File Number: MLG 211 of 2014

Judgment of: Judge Burchardt

Hearing date: 25 August 2014

Date of Last Submission: 25 August 2014

Delivered at: Melbourne

Delivered on: 29 October 2014

REPRESENTATION

The Applicant: In person

The Respondent: Mr S. Brady (by leave of the Court)

ORDERS

1. The Respondent pay the applicant $3,136.76. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 211 of 2014

PAUL ROOTH

Applicant

And

S. BRADY INDUSTRIES PTY LTD TRADING AS VEHICLE RELOCATORS

Respondent

REASONS FOR JUDGMENT

1. On 10 July 2014, I gave judgment in this matter.  I determined a preliminary issue, essentially, in favour of the applicant.  I decided that, contrary to the submissions of the respondent, the Road Transport and Distribution Award 2010 (“the RTD Award”) covered Mr Rooth’s employment and that the Road Transport (Long Distance Operations) Award 2010 (“the LDO Award”) did not.  I decided to list the matter for further submissions in order to quantify Mr Rooth’s claim in the light of that finding.

2. Subsequently, both parties have forwarded written submissions.  The submissions of Mr Rooth and of the respondent both start from the standing point that there is no kilometre rate of pay in the RTD award. 

3. The respondent also agrees with the applicant that no records were kept of hours worked for anything over 500 kilometres as the applicant was paid a kilometre rate of $0.29 per kilometre for long distance trips greater than 500 kilometres. 

4. The respondent also agrees that a reasonable method to convert the kilometre rate to an hourly rate would be to use the schedule of agreed distances and schedule of agreed driving hours for trips to and from Melbourne under cl.13.4(b) and 13.5(c) of the LDO Award.  Although, contrary to the respondent’s written submissions, (paragraph 4), copies of the awards were not annexed to the submissions, the Court already has a copy of both the RTD and LDO Awards. 

5. In circumstances where the way Mr Rooth was paid bore no relation to the pay structure in the RTD award, and doing the best I can to produce an outcome that is both in accordance with the law and just and equitable, it seems to me proper that I should adopt the methodology the parties themselves propound. 

6. Pursuant to cl.13.4(b) of the LDO Award, the distance from Sydney to Melbourne is taken to be 858 kilometres, and pursuant to cl.13.5(c), the time it takes to drive from Melbourne to Sydney is 10.5 hours. 

7. From the materials filed by the parties it seems clear that the kilometres that Mr Rooth asserts he drove during his employment are not of themselves the subject of challenge.  It should be noted that this is kilometres for journeys in excess of 500 kilometres for which there are no time records, as both parties agree. 

8. If one divides 858 kilometres by 10.5 hours, it produces the resulting hourly kilometre figure of 81.71. 

9. I have divided the figures travelled and produced the resultant calculations as follows:

May 2011 to June 2011

1. 20,261 kilometres divided by 81.71 equals 247.96 (rounded to 250 hours).

2. The hourly rate of $19.86 would produce a subtotal for this period of $4,965. 

July 2011 to June 2012

1. 107,023 hours divided by 81.71 equals 1309.8.

2. 1309.8 hours times hourly rate $20.53 equals $26,890.19.

July 2012 to February 2013

1. 66,177 kilometres travelled divided by 81.71 equals 809.9 hours.

2. 809.9 times hourly rate $21.13 equals $17,113.19.

3. The total of the wages to be paid, therefore, under this heading is $48,968.38. 

4. It is, I think, common cause that the respondent actually paid the applicant $56,103.69.  It is, therefore, apparent that the respondent does not owe the applicant anything in respect of his journeys of over 500 kilometres, at least in wages terms. 

Journeys under 500 kilometres

September 2010 to June 2011

1. It is common cause that the applicant worked 722 hours during this period and was paid an actual rate of $17.50 in the total of $12,635. 

2. The applicant should have been paid at the rate of $19.86 in a total of $14,339 (rounded off). 

3. The total underpaid for this period, therefore, was $1,703.92.

July 2011 to June 2012

1. It is common cause that the applicant worked 336.5 hours and was paid at the rate of $18.00 in a total of $6,057. 

2. He should have been paid at the rate of $20.53, and the resultant total is $6,908.

3. The resultant discrepancy is $851. 

July 2012 to February 2013

1. It is, again, common cause that the applicant worked 273 hours and was paid at the rate of $19.00 an hour in the total of $5,187. 

2. He should have been paid at the rate of $21.13, producing a total of $5,768.49.  The resultant discrepancy is $581.49. 

Total

1. The resultant underpayment is in the total of $3,136.76 for trips of less than 500 kilometres. 

Claim for non-driving time

1. Mr Rooth also claims time for flights, waiting for flights at airports, trains, buses, taxis and breakdowns.

2. The RTD Award does not have any clauses relating to any of these matters, although there is reference to delays, breakdown or impassable highways in cl.22 of the LDO Award.  The LDO Award, however, does not have, so far as I can see, any entitlements of the sort that Mr Rooth asserts, in any event. 

3. The reality is that, Mr Rooth’s claim for 20 hours per week for 35 weeks is wholly unparticularised and not the subject of any affidavit evidence.  Since there is a complete absence of evidence and since, in any event, the matters he claims do not appear, at least to me, to arise out of any clause in the award this claim must fail. 

Can the respondent set off the overpayments under the LDO Award against the underpayments under the RTD Award?

1. It should be noted at the outset that the respondent did not approach the way it paid Mr Rooth by reference to either the RTD or the LDO Award.  Indeed, it was the respondent’s position that neither of these awards, in fact, applied to Mr Rooth’s employment. 

2. There is a long history of authority relating to this issue going back, at the very least, to Ray v Radano [1967] AR (NSW) 471. A case often thought to be of particular significance is Poletti v Ecob (No 2) (1989) 91 ALR 381.

3. In Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406, Goldberg J reviewed the authorities in this regard, and I refer to, without incorporating it, his Honour’s judgment generally. At [57], having referred to Poletti v Ecob, his Honour said:

   “[57] In Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503, Keely J considered whether amounts paid by an employer to employees in some weeks which were in excess of the amounts prescribed by the relevant award could be offset against a subsequent payment of an amount due under an award. Keely J said at 509:

   "...none of those payments which were in fact above the award rate were paid as amounts due under the award; they were paid as amounts due under an agreement which patently was not intended to fulfil the respondent's obligations to pay wages under the award. [Counsel for the respondent] conceded - correctly in my opinion - that an employer who has paid, by agreement with an employee, an over-award payment can not later use that over-award payment to offset a subsequent payment of an amount less than that prescribed by the award. In my opinion the present cases, where the payments were made pursuant to an agreement, are in the same position."”

4. Goldberg J went on to say at [60]-[61]:

   “[60] These authorities make it clear that where a payment is made to an employee in discharge of an award obligation, which payment is in fact in excess of the amount of the obligation, the amount of the excess cannot be set-off against a claim in respect of a different award obligation unless at the time of the payment of the excess the employer designates that the excess is payable in respect of a purpose or an obligation different from the purpose for which the initial payment is made.

   [61] Put shortly, where there is a payment made for, or in respect of, ordinary hours of work which is in excess of the award obligation, the excess cannot be set-off against a claim for underpayment of overtime unless at the time of the payment of the excess, the employer designates that that excess over the amount of the award obligation is paid for the purpose of satisfying any entitlement to overtime payments.”

5. In this case, of course, the moneys paid to Mr Rooth were plainly paid pursuant to contract, and not pursuant to the award.  It is, therefore, clear in the light of the authorities referred to by Goldberg J in the Textile Union case that any overpayments pursuant to the contract cannot be offset against an award obligation. 

6. Further, even if the payments made were to be in some fashion characterised as payments made pursuant to the RTD Award, which they were plainly not, they were plainly payments made which were not subsequently characterised when the next payments were made pursuant to the shorter distance regime as offsetting any entitlement thereto.

7. In all the circumstances it is clear beyond doubt that the employer cannot set off against the shorter distance work the moneys paid for the longer distance work. 

Conclusion

1. In the circumstances there will be a payment on the claim to the applicant of $3,136.76.  The Court will so order.  

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  29 October 2014