Taylor v Peninsula Sports Academy Pty Ltd

[2019] FCCA 1929

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAYLOR v PENINSULA SPORTS ACADEMY PTY LTD [2019] FCCA 1929

Catchwords:
INDUSTRIAL LAW – Fitness Industry Award 2010 (Cth) – underpayment – unpaid allowances – break between shifts less than 10 hours – broken shift allowance – classification of the Applicant under the Award.

Legislation:

Fair Work Act 2009 (Cth) s.547
Federal Circuit Court Act 1999 (Cth) s.76(3)

Applicant: NATHAN TAYLOR

Respondent: PENINSULA SPORTS ACADEMY PTY LTD (ACN 161 348 652)

File Number: MLG 3924 of 2018

Judgment of: Judge McNab

Hearing date: 1 May 2019

Date of Last Submission: 13 May 2019

Delivered at: Melbourne

Delivered on: 12 July 2019

REPRESENTATION

The applicant appearing in person

Counsel for the respondent: Mr Lake

Solicitors for the respondent: Wilkens Roche Lawyers

ORDERS

1. The respondent pay the applicant the sum of $16,560.40 (being the underpayment of $16,070.04 and $490.36 in interest).

2. There be a stay of 60 days on the payment in Order 1.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3924 of 2018

NATHAN TAYLOR

Applicant

And

PENINSULA SPORTS ACADEMY PTY LTD (ACN 161 348 652)

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was heard by the Court on 1 May 2019 in the small claims list. The applicant, Mr Taylor, originally claimed underpayments of wages and allowances in the sum of $17,164.06 arising from his employment with the respondent, Peninsula Sports Academy Pty Ltd (ACN 161 348 652). He is also seeking payment of pre-judgement interest on these sums.

2. The applicant claims that the underpayments occurred during his employment from 8 December 2014 to 5 September 2017 where he was employed as a swimming coach for the respondent swimming club.

3. On 1 May 2019 I made findings as follows:

   a)from 8 December 2014 to 20 September 2015 the applicant's employment was classified at level III pursuant to the Fitness Industry Award 2010 (‘the award’);

   b)from 21 September 2015 to 5 September 2017, the applicant's employment was classified at level IV pursuant to the award;

   c)the applicant is not entitled to any further claim on account of payment in lieu of notice ($851.96); and

   d)the applicant is entitled to an award uplift on his salary by operation of the break between shift allowance pursuant to clause 26.2 of the award.

4. The matter did not conclude on 1 May 2019 as a certain aspects of the applicant's claim had not been determined. The parties were directed to file written submissions in relation to the balance of the claims and the quantum of the underpayments.

The parties’ submissions

1. Each party provided helpful written submissions on these issues and it is apparent that there is not a great deal at issue between them.

2. The respondent's submissions, under the heading ‘Relevant basis for calculations’, sets out what it contends the calculations periods should be:

   The respondent submits that there are six relevant and discrete periods of employment in relation to calculating the applicant’s underpayment. These are:

   (a): Period 1: the period from the commencement of the applicant’s employment on 8 December 2014 through to 30 June 2015. The applicable award hourly rate of pay for a Level 3 casual worker for this period was $23.30 per hour. In this period, the applicant worked 199 hours.

   (b): Period 2: the period from 1 July 2015 to 20 September 2015. The applicable award hourly rate of pay for a level 3 casual worker for this period was $23.88 per hour. In this period, the applicant worked 152 hours.

   (c): Period 3: the period from 21 September 2015 to 30 June 2016. The applicable award hourly rate of pay for a Level 4 casual worker for this period was $26.20 per hour. In this period, the applicant worked 429.25 hours.

   (d): Period 4: the period from 1 July 2016 to 7 August 2016. The applicable award hourly rate of pay for a Level 4 casual worker for this period was $26.83 per hour. In this period, the applicant worked 128.73 hours.

   (e): Period 5: the period from 8 August 2016 to 2 April 2017. The applicable award hourly rate of pay for a Level 4 casual worker for this period was $26.83 per hour. In this period, the applicant worked 255.75.73 hours.

   (f): Period 6: the period from 3 April 2017 to 5 September 2017. The applicant was employed on a full-time basis during this period. The applicable award hourly rate pay for a Level 4 full-time worker for this period was $22.42 per hour.

3. The parties are in substantial agreement as to the rates discussed above. The applicant noted that, with respect to period 6, the award rate for a Level 4 full-time worker employed between 1 July 2016 and 30 June 2017 is $21.46 per hour and that he was paid $22.42 per hour.

4. He also points out that again, with respect to period 6, the award rate for a Level 4 full-time worker employed between 1 July 2017 and 30 June 2018 is $22.17 per hour and that he was paid $22.42 per hour. The applicant acknowledges this overpayment, and deducts this from his overall sum (as discussed in the heading ‘Overpayment and payment in lieu of notice’).

5. The applicant is seeking an Order of $17,164.06 minus $242.06 for overpayment and $851.96 for payment in lieu of notice. The sum the applicant seeks is, therefore, $16,070.04.

6. The respondent is seeking an Order of $14,592.49. This sum does not refer to the overpayment of $242.06 as the applicant raised this overpayment in his response to the respondent’s final submission.

Issues in dispute

1. The submissions put by the respondent identify the areas of agreement between the parties. The respondent’s submissions explicitly accept the applicant’s claims as to:

   a)shifts where he worked less than one hour;

   b)broken shift allowance;

   c)first aid allowance;

   d)travelling time and fares;

   e)vehicle allowance;

   f)overtime;

   g)penalty rates on Saturdays, Sundays and Public Holidays;

   h)payments for insufficient break between shifts; and

   i)weekend and public holiday payments.

2. The areas of dispute, as framed by the respondent’s submission and the applicant’s response to that submission, include:

   a)whether the applicant is entitled to his claim for payment of additional hours worked (which the applicant asserts is valued at $1,428.53); and

   b)whether the applicant is entitled to a sleep over allowance (which the applicant asserts is valued at $67.26).

3. There is a dispute regarding the broken shift allowance:

   a)the applicant claims $2,839.34 in total;

   b)the respondent claims the sum is $2,853.68, being made from sums occurring:

   i)during the applicant’s period of casual employment, the sum should be $1,622.52;[1] and

   ii)during the applicant’s period of full-time employment, the sum should be $1,231.16.[2]

   [1] Respondent submissions file 8 May 2019 [10].

   [2] Respondent submissions file 8 May 2019 [13].

4. The difference, strangely, is that the respondent asserts an extra $14.34 is owed to the applicant. I accept the amount claimed by the applicant. I note that he has been honest in the figures that he has supplied and alerted the Court and the respondent where he has been overpaid.

Consideration

Additional Hours

1. The respondent does not accept the applicant's claim of $1,428.53 being a claim for additional hours worked between 8 December 2014 and 2 April 2017. The respondent claims that the applicant has not provided sufficient evidence to justify the additional hours claimed.

2. I do not accept the respondent’s submission. Having considered the evidence supplied by the applicant and his conduct in this proceeding (properly accounting for his overpayment and the honest and meticulous approach to recordkeeping), I accept that he has worked the additional hours as claimed. This includes transporting swimmers to Sydney as part of his work. This is evidenced by an email (dated 29 February 2016) from the respondent rescheduling a swimming class as the applicant will be driving swimmers to Sydney.

3. In my view, the applicant’s claim at [17] of his statement of claim for the additional hours worked is substantiated, and amounts to the sum of $1,428.53.

Allowances

1. The respondent and applicant are largely in agreement as to the allowances owed to the applicant. The respondent, however, submitted that the applicant was not owed a sleep over allowance, thus excluding the sum of $67.26 (being equivalent to 3 hours pay of the applicant’s ordinary rate of pay).

2. The applicant gives evidence that there was a sleepover at Mornington Secondary College pool on 7 July 2017. The evidence establishes that the sleep over event was attended by the applicant and arranged by the respondent. Accordingly, the applicant is entitled to this allowance.

Full time employment

1. The respondent calculates the total underpayment during the applicant’s period of full-time employment from 3 April 2017 to 5 September 2017 to be $10,750.29. This is calculated as follows:

   a)$8,962.63 being payment for the allowance for the break between shifts where the break was less than 10 hours;

   b)$1,231.16 being payment for the broken shift allowance; and

   c)$556.50 for work performed on weekends and public holidays during the period full-time employment.

2. The applicant disagrees with this sum. It appears, given he agrees with the sum in [12] and [14], that he takes issue with [13] and [15] of the respondent’s submissions (being the broken shift allowance of $1,231.16 and the total sum of $10,750.29).

3. There is significant difficulty in the submissions made by both parties. The parties are determining their sums on differing periods (the applicant having had 5 periods, the respondent 6). The respondent has not said which sum (or part of the sum) that the applicant has provided it disagrees with or why the Court should accept its accounting of the broken shift allowance. The applicant, in the same way, has not said what issue he has with the sum; or what part of it he disagrees with.

4. I am prepared to accept the figures that are provided by the applicant for the reasons that I stated earlier: he has approached this case in an honest and meticulous fashion. He has provided evidence for each claim that he has made and evidence for each sum that he has sought an order for. I note that the respondent did not provide evidence for the sum of $1,231.16 or explained to the Court in its submissions how that sum was calculated.

Overpayment and payment in lieu of notice

1. The applicant points out through a detailed calculation, which I accept, that he was overpaid the amount of $242.06. This was caused by the respondent paying him at a rate of $22.42 per hour when the applicable rate was $21.4, (for the period of 1 July 2016 to 30 June 2017) and later, continuing to pay him $22.42 when the rate increased to $22.17 (from 1 July 2017 to 30 June 2018). The applicant contends that this overpayment should be deducted from his total claim.

2. In accordance with the Order made by the Court during the hearing, the applicant is not entitled to a further claim in respect of a payment in lieu of notice in the sum of $851.96.

Interest

1. The applicant is also entitled to interest pursuant to s 547 of the Fair Work Act 2009 (Cth) and s 76(3) of the Federal Circuit Court Act 1999 (Cth). The interest rate will be according to the Interest on Judgements Practice Note (GPN-INT) as issued by the Federal Court of Australia.[3]

   [3] Federal Court of Australia, Interest on Judgements Practice Note (GPN-INT), <>

   The applicant is entitled to interest on the sum owed ($16,070.04) from the date the proceedings were issued. The interest is worked out according to this table:

Date From	Date To	Days In period	Rate	Daily Rate	Simple Interest
19/12/2018	31/12/2018	12	5.5%	0.015%	$29.06
1/1/2019	30/6/2019	180	5.5%	0.015%	$435.87
01/07/2019	12/07/2019	11	5.25%	0.014%	$25.43
Total					$490.36

1. The total interest owed is therefore $490.63.

Conclusion

1. As I have outlined, I believe the applicant has proved his case. The applicant has established that he is entitled to the sum of $17,164.06 minus his overpayment of $242.06 and his claim for payment in lieu of notice (being the sum of $851.96). In summary, the applicant was underpaid $16,560.40.

2. With the pre-judgement interest, this sum comes to $16,560.40.

3. There may be very minor differences in the parties’ calculations of the entitlements owed to the applicant. The Court has done the best it can to account for the differing views put but does not expect that any difference will be the subject of any further correspondence or dispute.

4. At the hearing I made an order for the payment of the sum be stayed for a period of two months. I do this on the basis that I accept the submissions made by the respondent’s counsel that the underpayments were not deliberate, arose as a result of misunderstanding the operation of the award, that the sums are significant for the respondent’s business, and that the respondent requires some time to pay the debt.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 12 July 2019