Stewart v Riverside Marine Gladstone Pty Ltd

[2015] FCCA 2411

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEWART v RIVERSIDE MARINE GLADSTONE PTY LTD [2015] FCCA 2411

Catchwords:
INDUSTRIAL LAW – Small Claims jurisdiction – whether appropriate forum to hear the application – interpretation of order of FWC where FWC refused to explain order further – application dismissed.

Legislation:

Fair Work Act 2009, ss.548

Applicant: DENISE KATHRYN STEWART

Respondent: RIVERSIDE MARINE GLADSTONE PTY LTD

File Number: BRG 528 of 2015

Judgment of: Judge Vasta

Hearing date: 28 August 2015

Date of Last Submission: 28 August 2015

Delivered at: Brisbane

Delivered on: 3 September 2015

REPRESENTATION

The Applicant  appearing on her own

Counsel for the Respondent: Mr S.Mackie

ORDERS

1. That the Applicant filed 15 June 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 528 of 2015

DENISE KATHRYN STEWART

Applicant

And

RIVERSIDE MARINE GLADSTONE PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This matter came before me in the Small Claims jurisdiction on 28 August 2015. I made orders on that day, in effect, dismissing the claim. I indicated that I would give some short reasons at another time because of the pressing nature of the rest of the list.

Jurisdiction

1. I am of the view that this is a matter that is not within the jurisdiction of the Small Claims division of the Federal Circuit Court. This is because the jurisdiction of the court arises from s.548 of the Fair Work Act 2009 (“the Act”).

2. Section 548 of the Act relevantly reads:

   “(1) Proceedings are to be dealt with as small claims proceedings under   this section if:

   (a)a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court; and

   (b) the order relates to an amount referred to in subsection (1A); and

   (c )the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.

   (1A) The amounts are as follows:

   (a) an amount that an employer was required to pay to, or on behalf of, an employee:

   (i) under this Act or a fair work instrument; or

   (ii) because of a safety net contractual entitlement; or

   (iii)because of an entitlement of the employee arising under  subsection 542(1);

   (b)an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.

   Limits on award

(2) In small claims proceedings, the court may not award more than:

(a) $20,000; or

(b) if a higher amount is prescribed by the regulations--that higher amount.”

1. This claim could not be said to come within the criteria outlined in s.548 (1A). This claim is, in effect, an application for judicial interpretation of what has been already ordered by the Fair Work Commission (FWC).

2. I have agreed to hear this matter because I do not want to see further litigation on this very narrow point

3. The respondent has been content to allow me to adjudicate this issue notwithstanding that it also agrees with me that the Small Claims jurisdiction is not the appropriate forum for this application.

The Facts

1. The applicant had been working with the respondent as a Master Class IV on a three week on two week off shift. After taking a four-month holiday, the applicant came back to find that the respondent had changed the rosters. Her roster was now two weeks as a Master Class IV, one week as a deckhand and two weeks off.

2. The applicant refused to work the deckhand duties. Accordingly she then worked two weeks out of every five. There were other things that occurred that eventuated in the applicant being dismissed from her employment.

3. The applicant filed an unfair dismissal claim with FWC in January 2014. In July 2014, Commissioner Simpson of FWC handed down a decision finding in favour of the applicant and saying that the process of dismissal was poor and that the applicant had reasonable explanations for her conduct.

4. It was ordered that the applicant be paid “2 months wages at the full gross rate of pay taxed according to law plus 9% superannuation.”.

Legal interpretation

1. It is obvious that there is some ambiguity as to what FWC was actually ordering with regard to those words used above.

2. The parties did seek to have the matter clarified by the Commissioner, however the Commissioner refused to elaborate. It is then a matter for me to decide what legal meaning of those words should have.

3. Consistent with what I said at the hearing, I am of the view that the use of the words “9% superannuation” with the words “2 months wages at the full gross rate of pay”, must mean that the two months wages are at the ordinary scale and not at the rate that includes the allowances that the applicant would have received if she had been working the roster that she would have been working.

4. This is because the superannuation component must be calculated at the ordinary rate of pay.  Therefore reference to the pay and the superannuation must mean that it is at the same rate.

5. If the Commissioner wished to have meant anything other than that which I have said, the Commissioner should have said so. If the Commissioner had made the order of the nine percent superannuation as a separate order to the two months wages of the full gross rate of pay, then the argument for the applicant would have great merit. However because the Commissioner has not done so are I have no choice but to assess the two months wages as being paid at the same rate as the nine percent superannuation.

Payment of notice

1. The applicant is also claiming payment in lieu of notice.

2. The enterprise agreement under which the applicant was employed says that “the employer is required to give an employee one (1) months’ notice if it intends to terminate their employment”. The agreement also says that employees who resign are “required to give their employer one (1) months’ notice”. With respect to that clause, employees over the age of 45 who have completed at least two years of continuous service with the employer will be entitled to an additional weeks’ notice. The agreement also says that the employer is entitled to choose to pay notice in lieu.

3. The applicant is claiming one month and one week’s notice.

4. On a strict reading of the agreement, the applicant did not resign and so therefore is not entitled to the extra weeks’ notice.

5. The applicant claims that the reasoning used for the “2 months wages at the full gross rate of pay” cannot be said to be used for the payment of notice. The applicant claims that the Commissioner could not have meant that this would be the case.

6. I am of the view, that the Commissioner did not intend for there to be two different rates of pay. If the Commissioner did intend that, the Commissioner should have said so.

7. I have already determined that the rate of pay for “2 months wages at the full gross rate of pay” should be on the ordinary hours scale, I feel as though it would be an affront to common sense for me to interpret that there is a different pay scale for payment of notice.

8. I understand that such a finding is upsetting to the applicant. I do feel some sympathy for her. But this is not a situation of my making. It is a situation fairly and squarely of the making of the Fair Work Commission.

Should overtime attach to these payments

1. During the course of argument, I indicated that I thought that the payment of overtime should attach to the first payment (that is, “2 months wages at the full gross rate of pay” amount) but not to the notice payment.

2. On reflection, I cannot see how such a conclusion can be justified.  The payment must be on the ordinary hours because of the manner in which the FWC phrased the order.  Therefore the overtime cannot attach to it. 

3. I have had the respondent sent to me the calculations they have done if the amounts were to include overtime. Those figures indicate that even on a calculation of overtime, the respondent has still overpaid the applicant.

4. I am comforted by this because I have decided that I was incorrect to have added any overtime component to the “2 months wages at the full gross rate of pay”.

5. The respondent has indicated that notwithstanding that they have overpaid the applicant; they will not be seeking repayment of any overpayment.

6. This means that no harm has been done by what I had said during the argument.

7. The respondent has paid the applicant $9,052.91 for pay in lieu of notice and $17,562.36 in satisfaction of the order of the fair work commission.

8. That is a total of $26,615.27.

9. On the calculations that should have been used pursuant to what the legal effect of the Fair Work Commission’s order was, the applicant should have been paid $7,598.11 in lieu of notice and $15,243.61 pursuant to the order of the Fair Work Commission.  That is a total of $22,841.72.

10. The applicant has been significantly overpaid and it is to the credit of the respondent that they are not seeking repayment of this sum.

11. For the reasons I have given, I dismiss the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  3 September 2015