WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2015 WAIRC 00925

DELIVERED : Wednesday, 7 October 2015

FILE NO. : M 183 OF 2014

CLAIMANT

AND

Paul Long

RESPONDENT

Catchwords : Alleged breach of the Transport Workers (General) Award No. 10 of 1961 and the Minimum Conditions of Employment Act 1993 by reason of the failure to pay annual leave entitlements; Whether there was an agreement to pay annual leave payments as part of an “all-in rate”.

Legislation : Industrial Relations Act 1979

  Fair Work Act 2009

  Minimum Conditions of Employment Act 1993

Instruments : Transport Workers (General) Award No. 10 of 1961

Result : Claim not proven

Representation:

Claimant : Mr T. Jardine (Counsel) of Jardine & Associates

REASONS FOR DECISION

1         P&C Long is a partnership which operates a trucking business. Mr Paul Long (the Respondent) is one of its partners. From 21 January 2013 until 14 November 2014 the partnership employed Mr Andrew Forster (the Claimant) as a truck driver.

2         It is not is in dispute that the Claimant’s employment was governed by the Transport Workers (General) Award No. 10 of 1961 (the Award) and that his classification under the Award was that of a Grade 7 Driver (see Clause 4.3 - Classifications). The Claimant drove a prime mover with a capacity of up to 42 tonnes. The Claimant was paid over the Award rate at $30.00 per hour for each hour worked. However, there is a dispute between the parties as to whether that hourly rate included an annual leave component.

3         The Claimant asserts that the payment of $30.00 per hour was exclusive of his annual leave entitlement, whereas the Respondent says his liability with respect to annual leave payments was included in that rate. The Respondent’s position is that the $30.00 per hour included a $4.00 component in relation to annual leave.

4         The Claimant’s pay rate was discussed by the Claimant and the Respondent prior to the Claimant commencing his employment with P&C Long. They agreed to the rate of $30.00 per hour but now have differing recollections of what the hourly rate was to include. Regrettably, the terms of their agreement was never reduced to writing.

5         The Claimant testified that he was offered payment of $30.00 per hour without mention of annual leave. He had just left a job identical to that which he was going into in which he had been paid $28.00 per hour plus a meal allowance, annual leave entitlements and an allowance for protective clothing.

6         When cross-examined about the agreement, the Claimant expressly rejected the contention that he was told that his hourly rate was $26.00 plus $4.00 per hour for his annual leave entitlements. He said that the Respondent did not say that the $30.00 per hour was for everything.

7         The Respondent testified that the Claimant informed him that he had been paid $26.00 per hour by his previous employer and consequently offered him $30.00 per hour as an “all-in rate” to include annual leave entitlements. When cross-examined about that, the Respondent did not resile from that position. Further, he denied that his evidence concerning the payment of $26.00 per hour plus $4.00 per hour for annual leave entitlements was a recent invention. The Respondent said this information was made quite clear to the Claimant at the time that he agreed to employ him.

8         In addition to what was discussed about the hourly rate, the parties are in conflict in their evidence about whether a complaint was made prior to the employment relationship ending about the non-payment of annual leave entitlements.

9         The Claimant alleges that he complained to the Respondent, who laughed off his demand for payment of annual leave entitlements.  The Respondent denies having received any complaint in that regard.

10      It is not in dispute that the Claimant took leave during his employment, including approximately 5 weeks in May/June 2014 when he travelled to Europe. He was not paid during that time off.

The Claim

11      The Claimant seeks the payment of $9,685.29 which he alleges is owed to him pursuant to Clause 6.1.1 (within Clause 6.1 - Annual Leave) of the Award. The amount sought represents the value of his unpaid annual leave entitlements.

12      On 4 December 2014, the Claimant lodged a Claim in this Court under section 548 of the Fair Work Act 2009, seeking the payment of $9,685.29. It suffices to say that the Claimant initiated his action using the wrong form and under the wrong Act. However, the use of the incorrect form will not defeat his Claim.

13      Both parties have proceeded on the basis that the Claim is one that is brought pursuant to section 83 of the Industrial Relations Act 1979. Both parties agree that there is no impediment to my determining the Claim, despite the difficulty with its form.

14      In the end result, the Claimant alleges a failure to comply with Clause 6.1.1 of the Award.

15      Clause 6.1.1 of the Award provides that:

“… an employee (other than a casual employee) is entitled for each year of service, to 4 consecutive weeks annual leave with payment of ordinary wages, as prescribed by this Award.  Such entitlement shall accrue pro-rata on a weekly basis”.

16      Clause 6.1.6 of the Award provides that:

“An employee whose employment terminates and they have not been allowed the leave prescribed under this clause they shall be give payment in lieu of that leave...”.

17      The Claimant contends that he has not been paid for leave taken and that which was due to him upon the termination of his employment.

18      The Respondent says that the payment of $4.00 per hour has covered all of the annual leave entitlements which were accrued by the Claimant.

19      Based on the evidence given for the Respondent by Mr Joshua Dalliston, Industrial Officer, Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (Mr Dalliston), which is accepted, I find that the Claimant, during his employment accrued 7.23 weeks of annual leave. He accrued four weeks in his first year of employment and 3.23 weeks in his second year.

20      On the Claimant’s own testimony, there can be no doubt that he took three periods of leave including the approximate 5 week period taken in May/June 2014.

21      The issue to be determined is whether the Claimant has been paid for that leave and whether he was owed annual leave entitlements on termination.

22      The Claimant bears the onus of proving, on the balance of probabilities, that he has not been paid his annual leave entitlements. On the available evidence, I find it impossible to prefer one version of the evidence over the other in respect of what was agreed in relation to the hourly rate.

23      The Claimant and the Respondent each gave their evidence in a forthright and credible manner. Neither of them was found wanting under cross-examination. In my view, their evidence is equally weighted.

24      I am not satisfied that it is more probable than not, that the hourly rate was exclusive of payment for annual leave. That being the case, I proceed on the basis that annual leave taken was paid for by virtue of the $4.00 per hour component of the hourly rate attributable to annual leave.

25      Given my findings, the Claimant’s contention that he was caused to forgo annual leave in contravention of section 8 of the Minimum Conditions of Employment Act 1993 is not maintainable.

26      The Claimant did not forgo annual leave. It is open to conclude that he took it and was paid for it.

27      I am satisfied on the evidence produced by Mr Dalliston that the amount paid to the Claimant with respect to annual leave entitlements exceeds the amount the Claimant alleges is owing.

28      It follows that Claim is not proven.

G. CICCHINI

INDUSTRIAL MAGISTRATE