WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2015 WAIRC 00942

DELIVERED : THURSDAY, 15 OCTOBER 2015

FILE NO. : M 66 OF 2015

CLAIMANT

AND

FWA Media Pty Ltd, Trading As Fishing Western Australia Protackle

RESPONDENT

Catchwords : Alleged failure to comply with the General Retail Industry Award 2010 (MA000004); Alleged underpayment; Small Claim; Limitation of claim to bring it within Small Claims jurisdiction.

Instruments : General Retail Industry Award 2010  (MA000004)

Case(s) referred to

in Reasons : Timothy William Barlow v FWA Media Pty Ltd, Trading as Fishing Western Australia Protackle

  [2015] WAIRC 00869

Result : Quantum determined

REASONS FOR DECISION AS TO QUANTUM

1         On 10 September 2015, I delivered my reasons for decision (reasons) in this matter (see Timothy William Barlow v FWA Media Pty Ltd, Trading as Fishing Western Australia Protackle [2015] WAIRC 00869). In those reasons, I determined certain factual disputes and made a finding with respect to the proper classification of the claimant under the General Retail Industry Award 2010 (MA000004) (the Award).

2         As a consequence of that determination, it became necessary for the parties to reconsider their cases as to quantum. The parties were invited to provide me with further evidentiary material in that regard.

3         To facilitate that, I made the following programming orders:

“1. Within seven days of the date of this Order, the Claimant is to file with the Court and serve upon the Respondent his recalculations in relation to the quantum of his Claim.

2.  The Respondent shall, if it wishes to do so, file with the Court and serve upon the Claimant responding calculation seven days thereafter.             

3.   If the Respondent complies with Order 2, the Claimant shall have a further seven days to lodge with the Court and serve upon the Respondent any reply to the Respondent’s calculations.

4.  Unless within 21 days hereof either party applies in writing to the Clerk of Court to be further heard, the Court will determine the issue of quantum on the papers in the absence of the parties.

5.   The Trial is otherwise adjourned sine die”

4         The parties have since complied with orders 1 and 2. The claimant however, has not replied to the respondent’s calculations as permitted by order 3.  Further, despite the opportunity given to be further heard, neither party has sought to be further heard. I will accordingly deal with the outstanding issue of quantum on the papers.

5         The claimant has recalculated his claim in accordance with the findings expressed in my published reasons. He has done so using the Fair Work Ombudsman’s online calculator and has prepared a hard copy of those calculations which he has filed in compliance with order 1.

6         I accept that the claimant’s calculations are accurate. Indeed, the respondent does not take issue with the accuracy of the claimant’s calculations. It suffices to say that the claimant’s calculations establish that the wages which were payable to him in accordance with the Award, in respect to the relevant period, amounted to $32,561.42.

7         In the pay calculations summary which accompanied his calculations, the claimant asserts that he was only paid $17,665.00 during the material period. The claimant therefore says that he is entitled to recover $14,896.42.

8         However, in evidentiary material that he has previously produced to this court (see exhibit 13), he had asserted that the total wages paid to him over the period of the claim was $32,414.97.

9         In responding to the claim, the respondent accepted the claimant’s assertions as to what had been paid to him. Therefore, at trial the quantum of wages received by the claimant was never in issue. Indeed, the proceedings were conducted on the basis that the claimant had been paid $32,414.97. The claimant appears to have now taken a different stance. In the end, the claimant’s initial concession that he was paid $32,414.97 binds him.

10      It follows from what I have said that the claimant is only entitled to the difference between what he has calculated to be owing to him under the Award, being $32,561.42, and what was paid to him which was $32,414.97. That difference is $146.45.

11      I propose to enter judgement in the claimant’s favour for that amount. It will also be appropriate to make an order for interest to be paid on that sum at the rate of 6% per annum, from 27 September 2014 to judgement, fixed at $9.40.

12      Finally, the respondent contacted the court by e-mail on 11 September 2015, indicating that it was confused about my findings concerning the working of public holidays. I cannot see how such confusion arises. It is clear that I have included in the schedule to my reasons all public holidays which I have found to have been worked. If the public holiday is not within the schedule it means that I have treated the public holiday as not having been worked.

13      It was not my intention, as put by the respondent, that the public holidays in the schedule be excluded or that they be otherwise discounted. That view held by the respondent distorts my findings.

G. CICCHINI

INDUSTRIAL MAGISTRATE