Wiechers v Sodexo Remote Sites

[2012] QCAT 16

CITATION: Wiechers v Sodexo Remote Sites [2012] QCAT 16

PARTIES:	Heinrich Wiechers (Applicant/Appellant)
v
Sodexo Remote Sites (Respondent)

APPLICATION NUMBER: MCDO05-11 (Cloncurry)

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Acting President

DELIVERED ON: 4 January 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The Orders made in this matter on 1 December 2011 are set aside.

2.    Mr Heinrich Wiechers must file one copy in the Tribunal and give one copy to Sodexo Remote Sites of any award or collective agreement relevant to his claim and any further material upon which he wishes to rely on or before18 January 2012.

3.    Sodexo Remote Sites must file one copy in the Tribunal and give one copy to Mr Wiechers of any further material upon which it wishes to rely in relation to this claim. 

4.    The matter is listed for further hearing by the Tribunal in Cloncurry on a date to be advised by the Registrar.

5.    Both parties have leave to appear by telephone at the resumed hearing.

CATCHWORDS:

MINOR CIVIL DISPUTE – JURISDICTION – CLAIM FOR WAGES – where Magistrate ordered the matter transferred to the Qld Industrial Commission – where no power to do so – where Tribunal has jurisdiction to hear and determine the matter

Fair Work Act 2009 (Cth), s 26(1)

Queensland Civil and Administrative Tribunal Act 2009, ss 11, 12, 52(7)

Workplace Relations Act 1996 (Cth), s 16(1)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Wiechers filed an application in the Minor Civil Dispute jurisdiction of the Tribunal at Cloncurry seeking an amount he claims is owing to him in wages and superannuation.  On 1 December 2011, a Magistrate sitting in his capacity as a Member of QCAT ordered that the application was transferred to the Queensland Industrial Commission for further direction.  The Magistrate also granted leave to both parties, subject to the requirements of the Court, to appear by telephone.

1. The power to transfer the matter to a more appropriate forum may only be exercised by a Judicial Member of the Tribunal.[1]  The definition of Judicial Member in the Queensland Civil and Administrative Tribunal Act 2009 does not include a Magistrate.[2]  Although the learned Magistrate made the orders it appears they have not yet been provided to the parties.  Nevertheless they have been entered on the file and should be set aside. 

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 52(7).

   [2]Queensland Civil and Administrative Tribunal Act 2009, Sch 3 (definition of ‘Judicial Member’).

1. The Tribunal does have jurisdiction to deal with minor debts in its Minor Civil Dispute jurisdiction.[3]  Mr Wiechers’ claim is for unpaid wages and superannuation and can be calculated by reference to various documents.  As such it meets the definition of a Minor Civil Dispute as it is a claim to recover a debt or liquidated demand of money.[4]  The amount of the claim falls within the prescribed amount.[5]

   [3]        Queensland Civil and Administrative Tribunal Act 2009, ss 11, 12.

   [4]Queensland Civil and Administrative Tribunal Act 2009, Sch 3 (definition of ‘Minor Civil Dispute’ (1)(a)).

   [5]Queensland Civil and Administrative Tribunal Act 2009, Sch 3 (definition of ‘Minor Civil Dispute’ (1)(a); definition of ‘prescribed amount’).

1. I am satisfied the Queensland Industrial Relations Commission does not have jurisdiction in relation to this claim for the following reasons.  The respondent, Sodexo Remote Sites, is the business name used by Sodexo Australia Pty Ltd, an Australian proprietary company limited by shares.  The claim relates to wages from 2007 and 2008.  On 27 March 2006 industrial arrangements between employers who were constitutional corporations, including proprietary limited companies, and their employees became subject to regulation by the Federal Industrial Relations jurisdiction.[6]  Were the matter  transferred to the Queensland Industrial Relations Commission, therefore, it could not deal with the claim.

   [6]Workplace Relations Act 1996 (Cth), ss 16(1), 5 (definition of ‘employee’), 6 (definition of ‘employer’) [effective from 27 March 2006, Act since superseded]; Fair Work Act 2009 (Cth), ss 26(1), 13 (meaning of ‘national system employee’), 14 (meaning of ‘national system employer’).

1. Mr Wiechers’ claim has already been the subject of mediation before the Tribunal.  It appears that both parties have already provided material.  However, the material does not include the relevant award and collective agreement.  This is evidence that would be necessary to determine the claim.

1. It is appropriate to make further directions to require Mr Wiechers to file in the Tribunal and give to Sodexo Remote Sites a copy of the relevant award or collective agreement and any other material upon which he wishes to rely.  Sodexo Remote Sites will be provided an opportunity to provide any further material it wishes to rely upon.

1. The learned Magistrate made orders that the parties may appear before the Queensland Industrial Relations Commission by telephone.  It is appropriate that the same order is made for the further proceedings before QCAT.  The matter will be referred back to Cloncurry to be dealt with by a Magistrate sitting as a Member of the Tribunal for the purposes of determining this Minor Civil Dispute.