Sultan v Consulate General of the Republic of Iraq, Sydney
[2021] FedCFamC2G 333
•10 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sultan v Consulate General of the Republic of Iraq, Sydney [2021] FedCFamC2G 333
File number(s): SYG 1753 of 2019 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 10 December 2021 Catchwords: INDUSTRIAL LAW – Further questions arising after judgment delivered – whether respondent contravened s 536(1) of the Fair Work Act 2009 (Cth) (FW Act) – whether the respondent contravened s 44(1) of the FW Act by failing to pay to the applicant, contrary to s 90(2) of the FW Act, accrued but untaken annual leave when the applicant’s employment with the respondent ended – declarations and order made. Legislation: Fair Work Act 2009 (Cth), ss 44(1), 61, 87, 88, 90, 94, 536(1), 545(2), 547 Division: Fair Work Number of paragraphs: 20 Date of hearing: 13 August 2021 Place: Sydney The Applicant: Appeared in person, by telephone Counsel for the Respondent: Mr J Fernon SC, by telephone Solicitor for the Respondent: Macpherson Kelley ORDERS
SYG 1753 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: JALAL SULTAN
Applicant
AND: CONSULATE GENERAL OF THE REPUBLIC OF IRAQ, SYDNEY
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
10 DECEMBER 2021
THE COURT DECLARES THAT:
1.During the period from October 2011 to 31 December 2018 the respondent contravened s 536(1) of the Fair Work Act 2009 (Cth) (FW Act) by failing to provide to the applicant a pay slip within one working day of each occasion on which it paid an amount to the applicant in relation to the performance of work.
2.The respondent contravened s 44(1) of the FW Act by failing, contrary to s 90(2) of the FW Act, to pay to the applicant when his employment with the respondent ended an amount it would have had to pay to the applicant had the applicant taken 63 days of paid annual leave that had accrued by the time the applicant ended his employment with the respondent.
THE COURT ORDERS THAT:
3.Pursuant to s 545(2) of the FW Act by 24 December 2021 the respondent pay to the applicant the sum of USD5,577.01, being the amount the respondent would have had to pay to the applicant had the applicant taken 63 days of paid annual leave that had accrued by the time the applicant ended his employment with the respondent.
4.By 24 December 2021 the applicant file and serve evidence (if any) and submissions on the question of penalty.
5.By 4 February 2022 the respondent file and serve evidence (if any) and submissions on the question of penalty.
6.The proceeding be listed for a directions hearing at 9:30 am on 11 February 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 16 July 2021 I published reasons for judgment on the basis of which I made orders that included the following:[1]
[1] Sultan v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1610
2.By 23 July 2021 the applicant may file and serve an affidavit and short written submissions in relation to the following questions:
(a)whether, during the respondent’s employment of the applicant, the respondent:
(i) failed to provide the applicant payslips;
(ii) failed to make superannuation payments; and
(iii)required the applicant to take annual and sick leave during the course of any one year without allowing any annual leave that accrued in that year to accumulate in the following year or years; and
(b)whether by failing to do either or both of the things referred to in (a)(i) and (a)(ii), or by requiring the applicant to do the things referred to in (a)(iii), the respondent contravened any provision of the FW Act.
3.By 6 August 2021 the respondent may file and serve an affidavit (if any) and written submissions in response to any affidavit and submissions the applicant may file pursuant to order 2.
4. The matter is listed for directions at 10:00 am on 13 August 2021.
The applicant, Mr Sultan, and the respondent (the Consulate), have filed submissions. On 13 August 2021 I heard submissions on the matters addressed in the parties’ written submissions. In these reasons for judgment I consider the parties’ submissions.
FAILURE TO PROVIDE PAY SLIPS
Mr Sultan claims the Consulate did not provide him with any pay slips. The Consulate accepts it did not provide Mr Sultan with pay slips. That is apparent from paragraph 47 of the affidavit Mr Witwit made on 12 June 2020:
The Consulate became aware of complaints regarding employee entitlements of various employees in the Consulate (of which Mr Sultan was not one) in or around 7 November 2018. The Consulate conducted a review of its practices and rectified some administrative irregularities as to the provision of pay slips, Group Certificates, deduction of tax and superannuation in respect of all of its then employees, including Mr Sultan.
It follows that throughout Mr Sultan’s employment with the Consulate, the Consulate contravened s 536(1) of the Fair Work Act 2009 (Cth) (FW Act), which provides:
An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
I propose to make a declaration to the effect that during the period from October 2011 to 31 December 2018, being Mr Sultan’s period of employment, the Consulate contravened s 536(1) of the FW Act by failing to provide to Mr Sultan a pay slip within one working day of each occasion on which the Consulate paid an amount to Mr Sultan in relation to the performance of work.
SUPERANNUATION
The Consulate accepts it did not make any superannuation contributions in relation to Mr Sultan. I accept the Consulate’s submission that this failure did not constitute a contravention of any provision of the FW Act. I note that Mr Sultan accepts the Consulate has rectified this omission.
ANNUAL LEAVE
To be in a position to deal with this part of the parties’ submissions, it will be necessary to refer to the provisions of the FW Act that deal with annual leave.
The starting point is s 87(1) of the FW Act. It establishes the entitlement of an employee to be paid annual leave; and it is defined in terms of the amount of weeks for each year of service. I need only refer to s 87(1)(a) of the FW Act, which provides for 4 weeks of annual leave for each year of service. The FW Act then contains a number of provisions that regulate this entitlement and the employer’s corresponding obligations to meet that entitlement.
(a)First, s 87(2) of the FW Act provides that an employee’s entitlement to be paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
(b)Second, s 88 of the FW Act deals with the taking of annual leave. Subsection 88(1) provides that the 4 weeks’ paid annual leave may be taken for a period the employee and employer agree; and this is subject to s 88(2), which provides that an employer must not unreasonably refuse to agree to a request by an employee to take paid annual leave.
(c)Third, s 90(1) of the FW Act deals with the employer’s obligation to pay the employee for any annual leave the employee has taken for the period agreed between the employee and the employer.
(d)Fourth, s 90(2) of the FW Act deals with the payment of accrued, but untaken, paid annual leave. An employer’s obligation to pay accrued but untaken paid annual leave accrues when the employment of an employee ends.
(e)Fifth, s 94(6) of the FW Act provides that an employer and an “award/agreement free employee may agree on when and how paid annual leave may be taken by the employee”.
Finally, there are provisions that deal with the enforcement of an employer’s obligations in relation to paid annual leave:
(a)Subsections 61(1) and (2) of the FW Act characterises a number of sets of provisions, including those in Division 6 of Part 2-2 of the FW Act which deal with paid annual leave, as “minimum standards that apply to the employment of employees which cannot be displaced”.
(b)Subsection 61(3) defines the minimum standards as the “National Employment Standards”.
(c)Subsection 44(1) provides that an “employer must not contravene a provision of the National Employment Standards”.
In his written submissions, Mr Sultan submits the Consulate required him to take “annual and sick leave” during the course of any one year without allowing any annual leave that accrued in that year to accumulate in the following year or years. In its written submissions, the Consulate, while submitting that Mr Sultan’s claim is confusing or unclear, understands that Mr Sultan may be making two claims in relation to annual leave. One is a claim that the Consulate forced Mr Sultan to take annual leave. The Consulate submits that if that is the claim, it cannot succeed because it was open to the Consulate, under s 94(5) of the FW Act, to require Mr Sultan to take a period of paid annual leave if requested.
The other claim the Consulate understands Mr Sultan may be making is that the Consulate has failed to pay to him untaken annual leave that had accrued by the time his employment ended with the Consulate. The Consulate made the following submissions:[2]
If it is a claim that the Respondent did not calculate the Applicant’s proper entitlement to annual leave accruals upon cessation of his employment pursuant to section 87 of the Act, then the Respondent’s evidence in the Proceedings in respect of this issue was (see the Affidavit of Ali Witwit sworn 12 June 2020 – paragraph 48(b):
“(b) The Consulate has reconciled the amounts which it believes are due to Mr Sultan in respect to his accrued leave over the course of his employment being an amount of 63 days. The Consulate has requested from Mr Sultan details of Mr Sultan’s Australian bank account details and, to date, he has not provided those details to the Consulate. The Consulate stands ready, willing and able to make payment to Mr Sultan in respect of this amount.”
Such evidence clearly indicates that the Respondent recognised that the Applicant’s accrued annual leave was significantly in excess of one year’s accrual and it follows that in the absence of any other evidence that there was no breach of section 87 of the Act.
[2] Respondent’s Further Submissions on questions raised by Order 2 of the Orders of the Court of 16 July 2021, [8], [9]
I take Mr Sultan to make two claims in relation to annual leave. One is a complaint that the Consulate compelled Mr Sultan to take annual leave. I am not prepared to make a finding to this effect, because the question was not explored in the substantive hearing before me.
The second claim is the Consulate failed to pay to Mr Sultan when his employment ended accrued but untaken annual leave. Mr Sultan makes that claim in his Form 2 where he claims “63 days not taken between 2012-2018”. Mr Sultan has not supported his claim with any evidence.
There is, however, evidence that at the time he ended his employment Mr Sultan had accrued 63 days of untaken paid annual leave. The evidence is contained in paragraph 48(b) of Mr Witwit’s affidavit where Mr Witwit acknowledged Mr Sultan had 63 days of accrued but untaken annual leave at the time his employment ended with the Consulate.
The Consulate makes no submission about whether Mr Witwit’s acknowledgement constitutes an acknowledgment by the Consulate that it contravened s 90(2) of the FW Act by failing to pay to Mr Sultan when his employment with the Consulate ended an amount it would have paid to Mr Sultan had Mr Sultan taken 63 days of paid annual leave. There can be no question, however, that the Consulate’s failure to make such payment is a contravention of s 90(2) of the FW Act and, therefore, of s 44(1) of the FW Act.
There is another matter to note. The statement Mr Witwit made in his affidavit that the Consulate “stands ready, willing and able to make payment to Mr Sultan in respect of this amount” may be intended to imply that the Consulate has done everything it was reasonably open to it to do to pay the amount of accrued but untaken annual leave it acknowledges is owing to Mr Sultan. If that is the intended implication, there is no evidence to support it. It is reasonable to infer that before Mr Sultan ended his employment with the Consulate the Consulate had been making regular payments to Mr Sultan which, in turn, implies it possessed all information (payment details) it required to enable it to pay any amount it owes to Mr Sultan. The Consulate has not adduced evidence that the payment details have changed; and the Consulate has still not paid to Mr Sultan the amounts it acknowledges it owes him for accrued but untaken annual leave.
I propose to make a declaration to the effect that the Consulate contravened s 44(1) of the FW Act by failing, contrary to s 90(2) of the FW Act, to pay to Mr Sultan at the time his employment ended an amount he would have been entitled to be paid (Accrued Annual Leave Amount) had he taken the 63 days of paid annual leave that had accrued but which Mr Sultan had not taken. I also propose to make an order under s 545(2) of the FW Act that by 24 December 2021 the Consulate pay to Mr Sultan the Accrued Annual Leave Amount. I do not propose to order the Consulate also pay interest, because Mr Sultan has not claimed interest. The Court, unless good cause is shown to the contrary, must include an amount for interest under s 547(2) of the FW Act only “on application”.
I have calculated the Accrued Annual Leave Amount to be USD5,577.01 as follows:
(a)First, I determined the period Mr Sultan would have had to work to accrue 63 days of annual leave. The period is 819 days.[3]
(b)Second, I calculated the accrued annual leave on 819 days, assuming an annual salary of USD32,400. That amounts to USD5,577.01.[4]
[3] 28/365 x 819 = 62.83
[4] (28/365 x 365/365 x 32,400) + (28/365 x 365/365 x 32,400) + (28/365 x 89/365 x 32,400) = 2,485.48 + 2485.48 + 606.05 = 5,577.01
I will therefore order that by 24 December 2021 the Consulate pay to Mr Sultan USD5,577.01.
DISPOSITION
I will make the declarations and order I said I propose to make. I will also make directions for the filing of submissions on penalty and, list the proceeding for a directions hearing with a view to setting the matter down for hearing on the question of penalty.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 10 December 2021
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