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Williams v MacMahon Mining Services Pty Ltd (No.2)

Williams v MacMahon Mining Services Pty Ltd (No.2)

Case [2009] FMCA 763 14 August 2009

Entitlement to Annual Leave

Calculation of Basic Periodic Rate of Pay

Set Off

Employment & Labour Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILLIAMS v MACMAHON MINING SERVICES PTY LTD (No.2)

[2009] FMCA 763

INDUSTRIAL LAW – Entitlement to annual leave – quantum of annual leave accrued – calculation of entitlement – nominal hours worked –whether employee worked specified number of hours per week – whether specified number of hours worked over a period – whether employee employed on a full-time basis.

INDUSTRIAL LAW – Calculation of basic periodic rate of pay –– whether criteria in definition fulfilled.

INDUSTRIAL LAW – Set off – whether calculable on evidence.

WORDS AND PHRASES – “specified” – “specified number” – “specified number of hours per week” – “specified number of hours over a period”.

WORDS AND PHRASES – “basic periodic rate of pay”.

WORDS AND PHRASES – “reasonable overtime”.

Agricultural Holdings Act, 1948 (UK) s.2(1)
Bankruptcy Act, 1914 (UK)
Evidence Act 1995 (Cth), s.55
Income Tax Act, 1918 (UK)
Workplace Relations Act 1996 (Cth), ss.173, 178, 201-222, 228, 229, 232, 233, 235(2), 245, 246, 507, 612

AFMEPKIU v BHP Billiton Iron Ore Pty Ltd [2006] WAIR Comm 5467
Andersen v Umbakumba Community Council (1994) 126 ALR 121
Australian Glass Manufacturers Co Pty Ltd & Ors v The Amalgamated Engineering Union & Anor (1960) 1 FLR 302
Australian Licensed Aircraft Engineers Association v Glyndale Pty Ltd (2009) 179 IR 102; [2009] FMCA 188
Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410
CFMEU v BHP Coal Pty Ltd (2008) 173 IR 56; [2008] AIRC 391
Coca-Cola Amatil (Aust) Pty Ltd v LHMU [2009] AIRC 438
Copperart Pty Ltd v Federal Commissioner of Taxation (1994) 28 ATR 119 Gibson v Bosmac Pty Ltd (1995) 60 IR 1
McMorran vA. E. Marrison (Contractors)Ltd [1944] 2 All ER 448
Mukesh v Refined Sugar Pty Ltd PR 966177; [2006] AIRC 176
Reid v Dawson (1955) 1 QB 214; [1954] 3 All ER 498
Re Kutner [1921] 3 KB 93
Re Metal, Engineering and Associated Industries Award 1998, Part 1 (2000) 110 IR 247
Rogers v Millenium Inorganic Chemicals Ltd & Anor (2009) 178 IR 297; [2009] FMCA 1
Tucker v Tucker [2008] FMCAfam 254
White v Whitcher (1927) 44 TLR 113
Williams v Macmahon Mining Services Pty Ltd [2009] FMCA 511

Chambers Concise Dictionary (Chambers, 1991)

The Oxford English Dictionary (2^nd edn) (Oxford: Clarendon Press 1989)

Applicant:

Adrian Cliffford Williams

Respondent:

Macmahon Mining Services Pty Ltd

File Number:

PEG 83 of 2008

Judgment of:

Lucev FM

Hearing date:

29 June 2009

Date of Last Submission:

29 June 2009

Delivered at:

Perth

Delivered on:

14 August 2009

REPRESENTATION

Counsel for the Applicant:

Mr D Schapper

Solicitors for the Applicant:

Derek Schapper Solicitors

Counsel for the Respondent:

Mr THF Caspersz and Ms R Harding

Solicitors for the Respondent:

Jackson McDonald

ORDER

That the respondent pay the applicant the sum of $8067.69 for untaken accrued annual leave by 4.00pm on 14 September 2009.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Perth

PEG 83 of 2008

Adrian Cliffford Williams

Applicant

And

Macmahon Mining Services…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Williams v MacMahon Mining Services Pty Ltd (No.2)

Details

AGLC: Williams v MacMahon Mining Services Pty Ltd (No.2) [2009] FMCA 763
Case: [2009] FMCA 763
Decision Date: 14 August 2009

CaseChat Overview and Summary

The case of Williams v MacMahon Mining Services Pty Ltd (No.2) arose in the Fair Work Commission, with Williams, an employee, contesting his entitlements to annual leave, the calculation of his basic periodic rate of pay, and the availability of a set-off against overtime payments. Williams claimed that he had accrued annual leave entitlements based on his hours worked, which were not fully recognised by the employer. The employer, MacMahon Mining Services Pty Ltd, argued that Williams' entitlements were correctly calculated based on the terms of his employment agreement and applicable industrial awards.

The court had to determine whether Williams had worked a specified number of hours per week or over a period, and if these hours justified a full-time employment status for the purpose of annual leave entitlement. Additionally, the court needed to decide if Williams' basic periodic rate of pay was properly calculated according to the criteria outlined in the relevant industrial instrument. The issue of set-off was also considered, specifically whether it was possible to calculate such a set-off based on the evidence provided.

The court found that Williams had indeed worked a specified number of hours per week, leading to a full-time employment status. This finding was crucial in determining his annual leave entitlement. The court also concluded that Williams' basic periodic rate of pay was accurately calculated, aligning with the criteria in the definition. However, the court ruled that a set-off against overtime payments could not be calculated based on the evidence presented. As a result, the court made orders recognising Williams' correct annual leave entitlements and affirming the calculation of his basic periodic rate of pay. The decision did not permit a set-off against overtime payments.

Orders