Shahin Enterprises Pty Ltd v Mathew

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FEDERAL COURT OF AUSTRALIA

Shahin Enterprises Pty Ltd v Mathew [2020] FCAFC 57

Appeal from: Mathew v Shahin Enterprises Pty Ltd [2019] SAET 111
File number: SAD 138 of 2019
Judges: WHITE, BROMWICH AND CHARLESWORTH JJ
Date of judgment: 31 March 2020
Catchwords: INDUSTRIAL LAW – appeal against judgment of the South Australian Employment Court (SAEC) declaring that the Appellant had contravened s 323 of the Fair Work Act 2009 (Cth) in three respects – whether the findings of a SAEC Deputy President regarding the Respondent’s starting times were in error – whether the Appellant was denied procedural fairness because an alternative claim advanced and upheld concerning the Respondent’s meal breaks had not been pleaded – whether a finding that the Appellant pay $67.13 together with superannuation and interest in respect of unpaid overtime was in error – consideration of whether the SAEC constituted by the Deputy President was a Court of summary jurisdiction – appeal dismissed.
Legislation:

Acts Interpretation Act 1901 (Cth) s 2B

Fair Work Act 2009 (Cth) ss 323, 565, 570

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 3, Items 2 and 34

Federal Court of Australia Act 1976 (Cth) s 25(5)

South Australian Employment Tribunal Act 2014 (SA) ss 5, 13, 14

Cases cited:

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347

Banque Commerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298

Fox v Percy [2003] HCA 22; (2002) 214 CLR 118

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

TCL Airconditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; (2014) 232 FCR 361

Date of hearing: 24 February 2020
Registry: South Australia
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 106
Counsel for the Appellant: Mr R Dalton QC with Mr A Denton
Solicitor for the Appellant: EMA Legal
Counsel for the Respondent: Mr S Blewett
Solicitor for the Respondent: Lieschke & Weatherill

ORDERS

SAD 138 of 2019
BETWEEN:

SHAHIN ENTERPRISES PTY LTD

Appellant
AND:

THOMAS MATHEW

Respondent

JUDGES:

WHITE, BROMWICH AND CHARLESWORTH JJ

DATE OF ORDER:

31 MARCH 2020

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

  1. The South Australian Employment Tribunal (SAET) sitting as the South Australian Employment Court (the SAEC) declared that the appellant (Shahin) had contravened s 323 of the Fair Work Act 2009 (Cth) (the FW Act) by underpaying one of its employees (Mr Mathew) in three respects. Subsequently, the SAEC, constituted by Lieschke DP, made orders…

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Details
Case
[2020] FCAFC 57
Decision Date

CaseChat Overview and Summary

In the case of Shahin Enterprises Pty Ltd v Mathew, the appellant, Shahin Enterprises Pty Ltd, sought to appeal a decision of the South Australian Employment Court (SAEC) which found that the appellant had contravened section 323 of the Fair Work Act 2009 (Cth). The respondent, Mathew, had initially brought the case against the appellant, claiming that he was entitled to overtime and meal breaks in accordance with the Fair Work Act 2009 (Cth). The SAEC Deputy President found in favour of the respondent, ordering the appellant to pay the respondent $67.13 in unpaid overtime, together with superannuation and interest. The appellant argued that the Deputy President had made errors in his findings regarding the respondent's starting times and meal breaks, and that the appellant was denied procedural fairness because the alternative claim regarding the meal breaks had not been pleaded. The appellant also argued that the finding that it pay $67.13 together with superannuation and interest was in error.

The legal issues in the case were whether the findings of the SAEC Deputy President regarding the respondent's starting times were in error, whether the appellant was denied procedural fairness because an alternative claim advanced and upheld concerning the respondent's meal breaks had not been pleaded, and whether a finding that the appellant pay $67.13 together with superannuation and interest in respect of unpaid overtime was in error. The court also considered whether the SAEC constituted by the Deputy President was a Court of summary jurisdiction.

The court found that the appellant's arguments were without merit. The Deputy President had made findings regarding the respondent's starting times based on the evidence presented, and there was no reason to overturn those findings. The court also found that the alternative claim regarding the respondent's meal breaks did not prejudice the appellant in any way, and therefore the appellant was not denied procedural fairness. Finally, the court found that the amount owed by the appellant to the respondent was correctly calculated, and there was no error in that finding. The court dismissed the appeal.

In summary, the court found that the SAEC Deputy President's findings regarding the respondent's starting times and meal breaks were correct, and that the appellant was not denied procedural fairness. The court also found that the amount owed by the appellant to the respondent was correctly calculated. The appeal was therefore dismissed, and there was no order as to costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It seems that the applicant presented his claim on the basis that he was entitled to overtime only in respect of those hours which exceeded 38, rather than those which exceeded his contracted 25 hours.The SAEC decision The Deputy President heard evidence from two witnesses, the applicant and Mr Vezspeller, who was Shahin’s Site Manager at Fulham Gardens throughout the period of the applicant’s employment. The rest of the evidence in the trial was documentary. The applicant’s starting time With respect to the applicant’s starting time, the Deputy President found:(a)the applicant was told that he had to be at work prior to the nominated roster time, at [37];(b)Shahin’s own evidence indicated that, despite it requiring handover duties to be performed by the departing and commencing employees at the end/beginning of each shift, it had not provided paid time within which this was to occur, which necessarily required at least one of the employees at the change of shift to perform duties for no pay, at [38];(c)there was no evidence to support Shahin’s claim that the applicant’s work before his rostered commencement time was “unpaid voluntary work”, at [39];(d)both Shahin’s head office and Mr Vezspeller had instructed the applicant to start work 10 minutes before the nominated shift time, at [41]. This was confirmed by a statement in Shahin’s Induction Manual, at [14];(e)the applicant had genuinely believed that he was instructed to start 15 minutes early and had usually done so, at [42];(f)the applicant had gained his understanding that he was required to start 15 minutes early either from his “buddy trainer” (the person allocated by Shahin to work with him during the first days of his employment) or by another superior, at [42]; and(g)in the absence of precise records and making allowances for the applicant’s acknowledgement that he had sometimes not been at the premises 15 minutes before the start, the applicant had attended 15 minutes before his scheduled start time on 90% of his shifts, and 10 minutes before the start on all but two of the remaining shifts, at [42]. On these findings, the Deputy President found that the applicant was entitled to be paid for an additional 15 minutes of work for 90% of his shifts and for an additional 10 minutes for each of the remaining shifts, at [48]. On the hearing of the appeal, the Court was told that the entitlement for the whole of the early starts amounted to $850.15 before the superannuation loading and interest. The meal breaks With respect to the meal breaks, the Deputy President rejected an objection by Shahin’s counsel in the closing submissions concerning the alternative way the applicant presented this claim. As already noted, whereas the applicant’s amended application had claimed that the meal breaks he had taken had not been meaningful and not as envisaged by the Collective Agreement, his alternative claim at trial was that he had not taken any meal breaks at all. The Deputy President described this difference as “a pleading issue” which did not cause him any concern about the applicant’s credibility or reliability. He also noted that Shahin did not claim to be prejudiced in any way by the difference in the way the applicant articulated his claim at the hearing.

Ratio Decidendi

Legal Principle Established

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