Sutton v Edyvane's Transports Pty Ltd

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Federal Circuit and Family Court of Australia

(DIVISION 2)

Sutton v Edyvane’s Transports Pty Ltd [2022] FedCFamC2G 834  

File number: MLG 1870 of 2021
Judgment of: JUDGE RILEY  
Date of judgment: 12 October 2022
Catchwords: INDUSTRIAL LAW – failure to keep records, provide payslips, provide employment records for inspection, display the applicable awards and the National Employment Standards, pay on retirement outstanding sums for annual leave and long service leave, pay for work diaries and protective clothing, and failure to pay livestock carting allowance and long distance transport allowance – contraventions serious – company director involved in the contraventions – RDOs not required to provided.
Legislation: Fair Work Act 2009 ss.45, 90(2), 323, 535, 536, 545(2), 546(1), 547, 550, 557A, 557B, 557C
Fair Work Regulations 2009 reg.3.31, 3.32, 3.33, 3.34, 3.36, 3.37(1), 3.42 and 3.46
Long Service Leave Act 1992 (Vic) (repealed) ss. 66(1), 72(2), 73(1), 74.

Other material:

Road Transport and Distribution Award 2010 cl. 4, 5, 16.2(b)(vi), 16.4(a),(b)(ii), 22.5
Road Transport (Long Distance) Operation Award 2010 cl. 4, 5, 14.1(c),(i),(v), 14.2(a),(b),(i), 20.5.
Cases cited:

Dormer v Relocation Laws Pty Ltd [2019] ACTMC 33
Duncan v Kelly Logistics Pty Ltd [2021] FedCFamC2G 330
EZY Accounting 123 Pty Ltd v Fair Work Ombudsman (2018) 360 ALR 26; (2018) 282 IR 86; [2018] FCAFC 134
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209; [2016] FCA 1034
Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848
Farrell v Choosewell Health Link Proprietary Limited [2021] FCCA 910
Gallagher v AG Labour Services Pty Ltd [2020] FCA 1753
Ghimire v Karriview Management Pty Ltd (No 2) (2019) 290 IR 331; [2019] FCA 1627
Jess v Cooloola Milk Pty Ltd [2021] FCCA 1526

York v Lucas (1985) 158 CLR 661; (1985) 61 ALR 307; (1985) 59 ALJR 776; (1985) ATPR 40-622; [1985] 158 CLR 661.

Division: Division 2 General Federal Law
Number of paragraphs: 193
Date of last submission: 5 September 2022
Dates of hearing: 15, 16, 17 and 18 August 2022
Place: Melbourne
Counsel for the Applicant: Alan Ford
Solicitor for the Applicant: Peter Hull & Associates
Counsel for the Respondents: Stephen Bunce
Solicitor for the Respondents: Wakefield Vogrig & Boote Lawyers

ORDERS

MLG 1870 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

RONALD SUTTON

Applicant
AND:

EDYVANE'S TRANSPORTS PTY LTD
(ACN 004 749 759)

First Respondent

MARIANNA LYNETTE EDYVANE

Second Respondent

order made by:

JUDGE RILEY

DATE OF ORDER:

12 October 2022

THE COURT DECLARES THAT:

1.The first respondent contravened the following civil remedy provisions of the Fair Work Act 2009 (“the Act”) and the Fair Work Regulations 2009 (“the regulations”):

(a)s.535 of the Act, by contravening:

(i)reg.3.32(a), (b), (c), (d) and (e) of the regulations by not making and keeping records with the required content;

(ii)reg.3.33(1)(a) and (3)(c), (d) and (e) of the regulations by not making and keeping records with the…

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Details
Case
[2022] FedCFamC2G 834
Decision Date

CaseChat Overview and Summary

The case of Sutton v Edyvane's Transports Pty Ltd involves a retired truck driver, Mr Sutton, who was employed by Edyvane's Transports Pty Ltd for 34 years. Mr Sutton brought proceedings against the company and its director, Ms Edyvane, alleging various contraventions of employment laws, including failure to keep records, provide payslips, and display applicable awards and the National Employment Standards. Other claims included failure to pay sums for annual leave and long service leave, work diaries, protective clothing, livestock carting allowance, and long distance transport allowance. The Fair Work Commission was the forum for this dispute.

The primary legal issues the court had to decide were whether the contraventions alleged by Mr Sutton were serious, whether Ms Edyvane, as a company director, was also liable for these contraventions, and if so, what the appropriate penalties and orders should be. The court also needed to ascertain the specific entitlements Mr Sutton had under the Modern Awards and determine if he was adequately compensated for all aspects of his work, including trip expenses.

The court found that Edyvane's Transports Pty Ltd did indeed contravene various employment laws, and these contraventions were serious, especially given the prolonged nature and the involvement of a company director. The court determined that Ms Edyvane, as an accessory, was liable for these contraventions. The court meticulously examined the calculations of allowances and entitlements under the Road Transport and Distribution Award 2010 and the Road Transport (Long Distance Operations) Award 2010. It accepted Mr Sutton's calculations regarding his livestock carting allowance and long distance operation allowance, finding that he was underpaid in these areas. Additionally, the court found that Mr Sutton was not adequately compensated for trip expenses as his wages did not fully cover his travel costs.

In conclusion, the court ruled in favor of Mr Sutton on all counts, holding both Edyvane's Transports Pty Ltd and Ms Edyvane liable for the contraventions. The court ordered that Edyvane's Transports Pty Ltd and Ms Edyvane pay Mr Sutton the outstanding amounts for the allowances and expenses, along with any other applicable penalties and costs, which were to be determined separately.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant (“Mr Sutton”) was employed by the first respondent for 34 years as a truck driver. He is now retired. The first respondent (“Edyvane’s”) is a company that was incorporated in 1968 and carries on the business of livestock transportation. The second respondent (“Ms Edyvane”) is an office administrator and was at all relevant times a director of Edyvane’s.BACKGROUND Mr Sutton’s outline of submissions filed on 29 July 2022 set out the background to this matter as follows: 1.On about 1 January 1985, the applicant commenced employment with the first respondent, and retired on 5 July 2019 (“Employment”) at the age of 66.2.The applicant’s primary responsibility was to transport livestock, mostly cattle, between farms, saleyards, and abattoirs. This often involved driving long distances, including interstate, and cleaning trucks after cattle were unloaded.3.Prior to the incorporation of the first respondent, the second respondent and her late husband commenced the business of livestock transportation in about 1955 as a partnership trading as Robert F and Leslie A Edyvane.4.The first respondent was incorporated on 24 October 1968 and carried on the business of livestock transportation. Since its incorporation the second respondent has been a director of the first respondent, and she has had the responsibility of running the office and administration for the first respondent. The second respondent organised the applicant’s jobs, and advised him of what he was required to do the following day, and where he had to be and when.5.Prior to the Employment, the applicant worked as a contractor for the first respondent from about September 1976 until about 1981 or 1982.6.From 1 January 2010, the Road Transport and Distribution Award 2010 (“RTD Award”), and the Road Transport (Long Distance Operations) Award 2010 (“RTDLO Award”) (collectively, “Modern Awards”) alternatively applied to the Employment according to their respective terms and the nature of the work performed on any given day.7.Under the RTD Award, the applicant was a transport worker grade 8, and a grade 6 worker under the RTLDO Award. Clause 16.2(b)(vi) shows that the applicant was entitled to an allowance of 2.59 per cent of the standard rate because he was a livestock carter, and to an allowance of 2.42 per cent of the standard rate under clause 14.1(c)(v) of the RTLDO Award. Even if these grade classifications are incorrect, the applicant does not allege that he was underpaid or paid below the award rate. If, however, the Court finds that he was on a lower grade level than 8 and 6, then an adjustment will have to be made to Mr Hull’s calculations referred to in his affidavit.8.Throughout the Employment, the applicant often worked long days of 10 to 12 plus hours, and often six days per week. He would often work on weekends, and public holidays, such as New Year’s Day, but was never required to work on Christmas Day, Good Friday, or Easter Saturday. The applicant did not have fixed meal times, and would usually eat when taking a break by reason of the fatigue management rules and/or when his truck was being loaded or unloaded. The applicant was never given a roster, and his work hours were dictated by livestock availability and determined by the second respondent or her husband or children who work for the first respondent.9.From about 17 January 2006, except for the periods 7 March 2007 to 10 September 2007 and 6 March 2012 to 11 September 2012, the applicant kept work diaries or logbooks.(footnotes omitted)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I do not accept the respondents’ submission that it was necessary for Mr Sutton to separately plead that Ms Edyvane’s contraventions were serious. She was an accessory. It was Edyvane’s contraventions that needed to be pleaded as being serious. Ms Edyvane’s accessorial liability simply follows. conclusion There will be orders accordingly. I will deal with penalties and costs separately.

Ratio Decidendi

Legal Principle Established

Under cl.14.1(c)(v) of the RTLDO, Mr Sutton was entitled to an allowance for carting livestock in long distance operations. That provision was substantially the same as cl.16.2(b)(vi) of the RTD, except that the percentage of the standard rate was 2.42% per week. The standard rates, as I understand it, are higher under the RTLDO. However, Mr Sutton argued, without the respondents disputing the point, that the calculation should be based on the RTD. Since 1 July 2018, the RTD provided for a minimum weekly rate for Grade 3 truck drivers, such as Mr Sutton, of $814.20. That led to a figure of $21.08 per week, for the period after 1 July 2018. The respondents did not dispute those figures and I accept them.b. The amount of the long distance operation allowance Under cl.14.1(c)(i) of the RTLDO, Mr Sutton was entitled to be paid a long distance operation allowance for any round trip that exceeded 500km. That provision was as follows:An employee who is engaged as a local driver under the terms and conditions of the Road Transport and Distribution Award 2010 and who is required by the employer to temporarily transfer to duties covered by this award must be paid an allowance of 1.24% of the standard rate on each occasion. Mr Sutton said that the standard rate for a Grade 4 truck driver, such as Mr Sutton, was $839.60 starting on 1 July 2018. Mr Sutton calculated that he was entitled to $10.41 for each round trip exceeding 500km. As mentioned previously, Mr Sutton did such trips about 30% of the time. These figures were not disputed by the respondents and I accept them.c. Was Mr Sutton paid for trip expenses? It was common ground that Mr Sutton was paid $30 per hour, which Ms Edyvane erroneously claimed was above the award rates for standard hours. Mr Sutton referred to CB 4580 and CB 4581 as an example of what he was paid. These pages show that Mr Sutton was paid:(a)$360 for Monday 18 March 2019, which was a 12 hour day, and included overtime;(b)$300 for Tuesday 19 March 2019, which was a 10 hour day and included overtime;(c)$360 for Wednesday 20 March 2019, which was a 12 hour day, and included overtime;(d)$360 for Thursday 21 March 2019, which was a 12 hour day, and included overtime; and(e)$90 for Friday 22 March 2019, which was a three hour day, and I don’t understand, because Mr Sutton was a full-time employee, and should have been paid for the day whether work was available for him or not. In any event, that totals gross wages of $1,470 for the week. The workings on CB 4581 show that $80 was taken from $1,470, leaving $1,390, and that tax (and superannuation) were calculated on the figure of $1,390, rather than the gross wages of $1,470. That left net wages of $1,072. Then, $80 was added back, presumably for trip expenses, to give the amount of $1,152 as net wages. From that, $20 was deducted as an extra personal contribution for superannuation. The cheque provided to Mr Sutton was for $1,132. The tax book at CB 4641 confirms that is how Mr Sutton’s wages were calculated.