DISTRICT COURT OF QUEENSLAND
CITATION:
Naughton v Secure Steel Pty Ltd [2022] QDC 74
PARTIES:
PETER NAUGHTON
(applicant/appellant)V
SECURE STEEL PTY LTD
(respondent)
FILE NO/S:
BD 2806/2021
DIVISION:
PROCEEDING:
ORIGINATING COURT:
Civil
Appeal
Magistrates Court at Cleveland
DELIVERED ON:
29 March 2022
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Allen QC DCJ
ORDERS:
1. Extend time for filing the notice of appeal subject to leave to 27 October 2021.
2. Grant leave to amend the notice of appeal by abandoning the current grounds and adding the following ground:
The Learned Magistrate erred in law by finding the Respondent was not required to pay the Appellant’s minimum entitlements under the Fair Work Act 2009 (Cth).
3. Grant leave to appeal the decision of the Magistrates Court at Cleveland given on 15 September 2021 in proceedings MAG-144/20.
4. Allow the appeal and set aside the order of the Magistrates Court dated 15 September 2021.
5. Remit the matter to the Magistrates Court to be heard and determined according to law.
CATCHWORDS:
EMPLOYMENT LAW – EFFECT OF INDUSTRIAL AWARDS, AGREEMENT, LEGISLATION ON EMPLOYMENT CONTRACT – where the appellant claimed for unpaid wages - where the Magistrate at first instance dismissed the appellant’s claim – where the Magistrate erred by regarding the minimum rates of pay provided by the applicable industrial award as a guide rather than a statutory minimum entitlement – where the Magistrate failed to determine the matters in dispute – whether the appellant should be granted an extension of time to appeal the decision of the Magistrate – whether leave to appeal should be granted – whether the appeal should be allowed – whether the matter should be remitted to the Magistrates Court for rehearing – where the record does not permit the appellate court to hear and determine the matter
Fair Work Act 2009 (Cth), s 45, s 545
Manufacturing and Associated Industries Award 2010COUNSEL:
D Payard for the appellant
SOLICITORS:
Caxton Legal Centre for the appellant
Wellners Lawyers for the respondent
In this matter, both parties jointly contend that the Magistrate at first instance erred in law and as to the orders this court should make in allowing the appeal. Having considered and agreed with those contentions, these reasons will be brief.
The appellant contended that he was employed as a welder by the respondent from 26 October 2016 to 21 May 2018 on a casual, then full-time, basis.
It was not in dispute that the Fair Work Act 2009 (Cth) (the FW Act) and the Manufacturing and Associated Industries Award 2010 (the Manufacturing Award) applied to the appellant’s employment.
The appellant claimed that he was underpaid according to the terms of the Manufacturing Award. The respondent denied that it had underpaid the appellant. The issues in dispute at the hearing were the applicant’s classification under the Manufacturing Award; the appellant’s employment status – the respondent denied that the appellant had ever been employed on a casual basis; the hours the appellant worked; and the amounts the respondent had paid the appellant.
Both the appellant and respondent were self-represented at the hearing. The appellant gave evidence as a witness and called two other witnesses. The respondent did not give evidence as a witness but made unsworn assertions from the bar table.
After dealing with the evidence of the two non-party witnesses, the Magistrate stated:
In this particular case, though, we are dealing with figures that may have been payments that were made below the award wage. Now, some people can work below the award wage; other people can work above the award wage. When it comes down to the award wages, they are used specifically as a guide to give some sort of parameter as to what the basic wage should be, and often the awards are above that basic wage; that would be expected.
Apart from, implicitly, resolving the issue of the appellant’s employment status in favour of the appellant, his Honour did not make findings as to the other particular factual matters in dispute in the proceedings. His Honour concluded:
I cannot see any evidence that is before the Court today on this particular claim that would allow me, on balance, to award the claim in favour of the plaintiff.
His Honour erred in law by finding the Manufacturing Award was a guide that the respondent did not have to comply with. Section 45 of the FW Act states that a person must not contravene a term of a modern award. The Manufacturing Award is a modern award.[1] Under the FW Act, if an employer contravenes the Manufacturing Award by not paying an employee the rates of pay set out in the Manufacturing Award, they contravene section 45 of the FW Act. The rates of pay in the Manufacturing Award are not guides, but statutory minimums. Further, section 45 of the FW Act is a civil remedy provision. If a court finds that an employer has contravened a civil remedy provision, such as section 45 of the FW Act, it has the power to order compensation for the loss the employee has suffered because of the contravention.[2] Ordinarily, this loss is the amount they were underpaid. As a result of his Honour’s error, his Honour failed to consider whether the respondent had contravened a term of the Manufacturing Award by failing to pay the rates in the Manufacturing Award and whether the respondent should have been ordered to pay compensation for that contravention.
[1]Manufacturing Award, clause 1.2.
[2]FW Act, s 545(1) and (2).
As a result of his Honour’s error, his Honour only made findings on one of the issues in dispute between the parties, being whether the appellant was employed as a casual for a period. His Honour did not make any findings related to the appellant’s classification under the Manufacturing Award, the hours the appellant worked or the amounts that the appellant was paid.
The record of proceedings below, particularly in light of the absence of evidence from the defendant as to the issues in dispute, does not permit this court to do determine such matters. The matter must be remitted to the Magistrates Court to be reheard.
The appellant requires an extension of time for filing his application for leave to appeal and requires leave to appeal. The respondent does not oppose such and the interests of justice require that the appeal be heard and determined on its merits.