WILCZAK v ALPINE REFRIGERATION and Anor (No.2)
[2006] FMCA 305
•21 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILCZAK v ALPINE REFRIGERATION & ANOR (No.2) | [2006] FMCA 305 |
| TRADE PRACTICES – Whether the respondents engaged in conduct that contravened section 51AC of the Trade Practices Act 1974 (Cth) – leave entitlements – application dismissed. |
| Trade Practices Act 1974 (Cth), ss.51AC, 52, 53, 53AB, 82, 87 Federal Court of Australia Act 1976 (Cth), s.32AB(6) |
| Applicant: | ANNA WILCZAK |
| First Named Respondent: | ALPINE REFRIGERATION & AIR CONDITIONING PTY LTD |
| Second Named Respondent: | HARRY SISSANES |
| File Number: | SYG 586 of 2003 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 23 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Nil |
ORDERS
That the application be dismissed.
That there no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 586 of 2003
| ANNA WILCZAK |
Applicant
And
| ALPINE REFRIGERATION & AIR CONDITIONING PTY LTD |
| HARRY SISSANES |
Respondents
REASONS FOR JUDGMENT
The issue for determination is whether the respondents engaged in conduct in breach of s.51AC of the Trade Practices Act 1974 (Cth) (the Act).
By way of background these proceedings were commenced on 10 March 2003 in the Federal Court of Australia. In her application the applicant sought damages and declaratory relief pursuant to ss.82 and 87 of the Act for alleged breaches of ss.51AC, 52, 53 and 53B of the Act. That application was transferred pursuant to s.32AB(6) of the Federal Court of Australia Act 1976 (Cth) to the Federal Magistrates Court by Madgwick J and heard by Driver FM on 17 and 18 November 2003. His Honour dismissed the application on 12 February 2004 and that decision was the subject of appeal to the Full Court. Her Honour Justice Branson sitting as a single judge of the Full Court dismissed the appeal but ordered that the question of the applicant’s entitlement to annual leave with leave loading be remitted back to this Court for determination.
The applicant commenced full time employment with the respondent on 10 September 2001 as an Office Administrator.
From 27 May 2002 the applicant was on workers compensation until 27 November 2002 at which time her employment with the respondent was terminated.
On 4 August 2003 the applicant was provided by the respondent with a cheque in the amount of $1561.38 representing her leave entitlement to 14 February 2003 including leave loading at the prescribed rate of 17.5%. In a letter dated 9 November 2004 the applicant claimed further leave entitlements in the amount of $584. A further cheque in the sum of $54.87 was paid to the applicant on 17 November 2003.
On 25 November 2004 the respondents’ then solicitor received a letter from the applicant dated 25 October 2004 claiming that the applicant worked 38 hours per week (not 37.5). In response to the applicant the respondent enclosed a pay slip dated 6 August 2003 for $1561.38 and advised the applicant that all monies payable in respect of her period of employment with the respondent including taxation liabilities had properly been paid. On 6 December 2004 a further letter was received by the respondents’ solicitors from the applicant which stated that there was a balance of $32.48 still owing but without access to records of the respondents she could not verify the accuracy of those calculations and also that without proof that all tax had been paid she would not accept that tax had in fact been paid)even though that was a legal obligations of the employer).
At the hearing the applicant was able to quantify the amount she says was owing having previously been unable to do so. Her claim was for leave entitlements in the amount of $502.96, calculated on the basis of 217.1 hours at $15 per hour over a 38 hour week.
The applicant’s group certificate shows that she worked on a full time basis from 8:00am to 4:30pm each day including an hour for lunch. She was paid at the rate of time and a half for overtime she worked.
The applicant claimed there were occasions when she collected the mail on the way to work and that she had therefore started work at 7:30am. The applicant also drew the Court’s attention to the fact that 38 hours was recorded on her pay slip. In turn the respondent gave evidence that the personnel officer responsible for the payroll system rounded off all employees hours of work to 38 hours per week to suit the computer system. The respondent accepts that this may have been a mistake and in fact rectified the system on 20 November 2003 by changing the payroll system to reflect the exact hours worked by the applicant and all other employees of the first respondent that is 37.5 hour per week.
The modification did not in any way affect the amount that employees were paid. I am satisfied on the evidence that the applicant was paid the correct leave entitlements for the hours worked together with the correct leave loading. Further, although the applicant may have left home earlier to collect the mail on some occasions this was an act of good will rather than part of her employment duties and did not create an entitlement to any additional pay. The calculation of the monies owed to the applicant set out in Annexure B of Mr Sissane’s Affidavit of 6 October 2005 is correct both in terms of the formula used and the numbers input to the formula in order to reach the final result.
In all the circumstances, I can see no breach of s.51AC, nor indeed any evidence to suggest that the respondents have engaged in unconscionable conduct. The application is therefore dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Legal Associate: Peter Smith
Date: 21 March 2006
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