2016 WAIRC 00914
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2016 WAIRC 00914

CORAM
: INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD
:
WEDNESDAY, 9 NOVEMBER 2016

DELIVERED : WEDNESDAY, 7 DECEMBER 2016

FILE NO. : M 14 OF 2016

BETWEEN
:
VINCENT JOHN CICCARELLI
CLAIMANT

AND

HAZDRA PTY LTD T/AS BANKEN BUILDING (ACN 009 262 006)
RESPONDENT

Catchwords : Alleged contravention of the Fair Work Act 2009 and the Building and Construction General On-site Award 2010 [MA000020] by failing to pay annual leave entitlements, annual leave loading, public holiday and sick pay entitlements – Whether the claimant was a casual employee.
Legislation : Fair Work Act 2009
Instruments :     Building and Construction General On-site Award 2010 [MA000020]
Case(s) referred to
in reasons : Miller v Minister of Pensions [1947] 2 All ER 372
Result : Claim is proven (in part)
REPRESENTATION:

CLAIMANT : IN PERSON
Respondent : Mr F. Banken (director)


REASONS FOR DECISION
Introduction
1 Hazdra Pty Ltd (the respondent) carries on business as a builder trading as Banken Building.
2 Mr Vincent John Ciccarelli (the claimant) worked for the respondent from 4 January 2010 until about 27 September 2015.
3 The respondent engaged the claimant with a view to taking him on as an apprentice. The claimant commenced his apprenticeship with the respondent in April 2010. In April 2013, the claimant successfully completed his apprenticeship and became a qualified roof carpenter.
4 Upon the completion of his apprenticeship, the claimant continued to work for the respondent as a qualified tradesman. His post-apprenticeship employment was the subject of two written contracts of employment. The first written contract was signed on 6 April 2013 and the second on 15 February 2014 (exhibit 5). The second contract of employment remained in force until the claimant resigned.
5 It is not in dispute that at all material times the Building and Construction General On-site Award 2010 [MA000020] (the Award) was applicable to the claimant’s employment.
6 The claimant asserts that the respondent owes him $20,298.96 (gross) because it did not pay him his correct entitlements. He contends that he was not paid annual leave loading, for public holidays and sick days taken. Further he alleges that subsequent to the completion of his apprenticeship, the respondent failed to provide him with four weeks of paid annual leave.
7 The respondent denies the claimant’s assertions. It contends that the claimant was, during his apprenticeship, paid his correct entitlements. It says that after the claimant’s apprenticeship ended it employed him on a casual basis which meant that he was not, excepting any agreement to the contrary, entitled to public holiday, sick leave, annual leave and annual leave loading payments.
8 Although the respondent readily concedes that the contracts of employment (exhibit 5) do not specifically indicate that the claimant was employed as a casual, it says that the fact that he was paid at 25% above the Award rate, which is a ‘good rate’, evidences that at all material times he was a casual employee.
9 Mr Francis Banken (Mr Banken), the director of the respondent, points out that the claimant never complained about his pay or entitlements during the course of his employment and that it is somewhat unfair that he now does so, particularly having regard to the fact that the respondent has treated him fairly and generously throughout.
Issues
10 The issue to be determined in this matter are:
1. whether the claimant was, during the course of his apprenticeship, paid his correct entitlements and if not, the amount that is owed to him; and
2. whether the claimant was, after the completion of his apprenticeship, employed on a casual or alternatively full-time basis; and
3. if not employed as a casual, whether the claimant is owed entitlements.
Onus and Standard of Proof
11 The claimant carried the legal burden of proof for his claim whilst the respondent carries the legal burden of proving those things which it asserts.
12 The standard of proof required to discharge the respective burdens of proof is the balance of probabilities. This standard was explained by Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372, 374 as follows:
That degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.
13 Accordingly, where in these reasons I say that ‘I am satisfied’ of a fact or matter or otherwise make a finding as to a fact or matter, I am saying ‘I am satisfied on the balance of probabilities’ of that fact or matter. Where I state that ‘I am not satisfied’ of a fact or matter I am saying that ‘I am not satisfied on the balance of probabilities’ of that fact or matter.
The Facts
14 The facts are generally uncontentious.
15 The claimant’s father found the claimant a job with the respondent.
16 The claimant was 19 years of age when he commenced his apprenticeship with the respondent. Whilst he was an apprentice, the claimant worked under the supervision of the respondent’s director, Mr Banken.
17 The claimant’s conditions of employment were subject to the Award and his hourly rate at commencement was $10.45. It was subsequently increased to $13.75 and then $16.19. Upon completion of his apprenticeship his hourly pay rate was $18.14.
18 It is not in dispute that throughout the claimant’s employment with the respondent he usually worked a 40-hour week comprised of eight hours each day, Monday to Friday. On rare occasions, he also worked on Saturdays. Each Christmas period the respondent shut down its operations for about two weeks and the claimant did not work during such period. Further the claimant was instructed to not attend work when the weather was inclement or too hot.
19 The respondent’s pay roll accounts were maintained by Mr Banken’s mother, who manually recorded all relevant information in a wages book and in an exercise book. The claimant was initially provided with hand-written payslips, but in about 2011 that changed and he was thereafter provided with typed payslips.
20 Mr Banken’s mother, who is elderly and unwell, was unable to give evidence in this matter. The respondent has produced an incomplete copy of the wages book she kept, however neither the original nor copy of the exercise book has been produced. The respondent has used those source documents to produce a table of hours worked by the claimant and of payment made to him. That schedule (exhibit 8) is attached to the respondent’s response in this matter. The claimant says that he has adopted the information in the respondent’s schedule in order to prepare his amended claim. He has prepared his own schedule outlining his claim (see exhibit 1).
21 When the claimant’s apprenticeship ended Mr Banken agreed to keep him on as an employee. The parties then negotiated the terms of a contract of employment which was reduced to writing and signed on 6 April 2013.
22 The contract provided inter alia that the:
· claimant would be paid $35 per hour for an eight-hour day totalling $280 per day; and
· respondent would pay the claimant public holidays; and
· respondent would pay the claimant two weeks’ holiday pay at 38 hours per week; and
· respondent would pay the claimant superannuation at 9.25% costed at $26 per day; and
· respondent would pay the claimant workers compensation cover costed at $35 per day.
23 The contract did not indicate whether the claimant’ employment was full-time or casual. There is a now a dispute between parties as to whether the claimant was then engaged as a full-time employee or alternatively as a casual employee.
24 On 15 February 2014, the parties entered into another written contract of employment. Again there was no mention in that contract as to whether the claimant was employed on a full time or casual basis. That contract provided inter alia that the:
1. claimant would be paid at the rate of $40 per hour for an eight-hour day, amounting to $320 per day; and
2. respondent would pay some public holidays; and
3. respondent would pay the claimant two weeks’ holiday pay at 38 hours per week; and
4. respondent would pay the claimant superannuation at 9.25% costed at $29.60 per day; and
5. respondent would pay the claimant’s workers compensation cover costed at $44.80 per day.
25 The terms of the second written contract of employment remained in force until the claimant’s employment with the respondent came to an end.
26 On 28 August 2015, the claimant gave the respondent four weeks’ notice of the termination of his employment. Thereafter he gave the respondent a document in which he alleged that he had been underpaid.
27 On 30 September 2015, Mr Banken responded to the claimant’s claim. His response (exhibit 3) which is unsigned, is somewhat difficult to follow but appears at the very least to concede that the claimant was, during the course of his apprenticeship, not paid for holidays occurring during the Christmas period shut down. At worst for the respondent, it could be construed that the respondent admitted to owing the claimant $9,788.95 (gross).
28 In any event, the respondent did not pay the claimant what he sought. Thereafter the claimant’s accountant wrote a letter of demand on behalf of the claimant seeking the payment of $15,360. The claimant’s accountant asserted that the claimant was owed 48 days of unpaid leave at the rate of $320 per day (exhibit 6). The accountant’s letter appears to contain some arithmetical errors however that is of little significance. It suffices to say that the amount claimed was not paid. Thereafter the claimant lodged his claim seeking $15,360. He has subsequently recalculated the quantum of his claim.
Determination
Apprenticeship Period: 2010
29 With respect to the calendar year 2010, the claimant’s claim is restricted to the non-payment of annual leave loading in the amount of $223.23 based on an entitlement of 160 hours for that year. In that regard I note that the claimant’s entitlement is less than 160 hours because he did not commence working for the respondent until mid-way through January 2010. On my calculations his entitlement was therefore reduced to 153.85 hours of paid leave. The annual leave loading payable was therefore $200.61 and not the amount claimed.
30 The issue which remains is that of whether or not the leave loading was paid. The respondent asserts that it was and it is for the respondent to prove that. The respondent has produced pay slips (exhibit 7). The payslips for 17 December 2010 indicates the payment of annual leave loading in the amount of $277.95. That amount however, does not appear in the respondent’s schedule. The figures in the payslip are inconsistent with the figures noted in the respondent’s schedule.
31 I note that the payslips produced for the early part of the claimant’s employment are a reconstruction of the hand-written payslips given to him at the material time and accordingly, should be treated with caution. However, I am satisfied that payslips for 17 December 2010 are accurate because they correlate precisely with what the claimant received by way of payment on 20 December 2010. The claimant’s bank statement (exhibit 2) for December 2010 shows that the respondent paid him a net amount of $2,140.10. His payslips for 17 December 2010 show that he was paid a net amount of $576.95 for work and allowances and a net amount of $1,563.15 for holiday pay and leave loading ($277.95). The sum of those two amounts is $2,140.10 being the amount received by the claimant. It follows that the claimant was paid his annual leave loading for leave taken that year. The claimant’s claim with respect to 2010 is not made out.
32 It appears however that during the material period the respondent overpaid the claimant $77.34 ($277.95 - $200.61).
Apprenticeship Period: 2011
33 The claimant’s claim is for annual leave loading for leave taken in the pay periods ending 22 April 2011, 6 May 2011, 23 September 2011 and 23 December 2011. It suffices to say that none of the corresponding payslips (exhibit 7) indicate a payment of annual leave loading. Further the claimant’s bank statements (exhibit 2) relevant to those dates correlate with the payslips. I conclude therefore, that no payment of annual leave loading was made in 2011. The payment of annual leave loading was required by cl 38.2(b) of the Award.
34 The claimant’s claim with respect to 2011 also comprises a claim for unpaid public holidays. It is self-evident from the respondent’s own records (exhibit 9) and payslips (exhibit 7) that the respondent did not pay the claimant holiday pay for Christmas and Boxing Day holidays in 2010 and New Year’s Day in 2011. Those days were payable pursuant to cl 41.1 of the Award.
35 The claimant’s claim is made out in its entirety with respect to 2011. I am satisfied that he is owed $319.55 in unpaid annual leave loading and $250.80 for unpaid public holidays. I accept that his calculations in exhibit 1 with respect to that period and other periods are accurate.
Apprenticeship Period: 2012
36 The claimant’s claim with respect to unpaid annual leave loading relates to the leave taken for the pay periods ending 11 May 2012, 25 May 2012, 7 September 2012 and 21 December 2012. It suffices to say that the payment of annual leave loading is not indicated on any relevant payslips (exhibit 7) or any other document produced. I note also that the claimant’s bank statements for the relevant periods do not indicate such payment. Consequently, I am satisfied that the claimant is owed $471.60 in annual leave loading which was not paid in 2012.
37 The claimant’s 2012 claim also includes a claim for public holidays taken which were not paid, comprising Christmas Day and Boxing Day 2011, New Year’s Day 2012 and also one sick leave day taken in the pay period ending 7 September 2012 but not paid.
38 A perusal of the pay slips and other documentary evidence indicate that the public holidays referred to above were not paid. I am therefore satisfied that the claimant is owed $330 in that regard.
39 As to the sick leave allegedly taken in the pay period ending 7 September 2012, I cannot be satisfied that two days’ sick leave were in fact taken. In that regard the claimant says that his schedule (exhibit 1) is based on the information in the respondent’s schedule (exhibit 8), however the two do not correlate. The respondent’s schedule indicates that only one sick day was taken and another day was taken as leave without pay. The respondent’s payslip shows that one of the two days taken was a sick day. The respondent’s time and wages record (exhibit 9) does not assist the claimant. Absent of proof produced by the claimant that during the material period he took a sick day which was not paid, I cannot be satisfied of that fact. Essentially the claimant relies on the respondent’s records which are inconclusive. The claim in the amount of $145.12 for unpaid sick leave is accordingly not made out.
Apprenticeship Period: 2013
40 The claimant’s claim with respect to this period relates solely to the non-payment of public holiday entitlements for Christmas Day and Boxing Day 2012 and New Year’s Day 2013. The payslips produced by the respondent and the other documentary evidence produced by the respondent indicate that the claimant was not paid his entitlements for those days. It follows the claim is made out in that regard.
Post Apprenticeship
Was the Claimant a Casual Employee?
41 The outcome of the claimant’s claim with respect to the post apprenticeship period is predicated on whether or not he was a casual employee.
42 Clause 14 of the Award deals with casual employment. It provides:
14. Casual employment
[Varied by PR542770]
14.1  A casual employee is one engaged and paid in accordance with the provisions of this clause.
14.2  A casual employee is entitled to all of the applicable rates and conditions of employment prescribed by this award except annual leave, paid personal/carer’s leave, paid community service leave, notice of termination and redundancy benefits.
14.3  An employer, when engaging a person for casual employment, must inform the employee, in writing, that the employee is to be employed as a casual, stating by whom the employee is employed, the job to be performed, the classification level, the actual or likely number of hours to be worked, and the relevant rate of pay.
14.4  A casual employee is entitled to payment for a minimum of four hours’ work per engagement, plus the relevant fares and travel allowance and expenses prescribed by clauses 24—Living away from home—distant work and 25—Fares and travel patterns allowance on each occasion they are required to attend work.
14.5  A casual employee must be paid a casual loading of 25% for ordinary hours as provided for in this award. The casual loading is paid as compensation for annual leave, personal/carer’s leave, community service leave, notice of termination and redundancy benefits and public holidays not worked.
[14.6 substituted by PR542770 ppc 02Oct13]
14.6  A casual employee required to work overtime or weekend work will be entitled to the relevant penalty rates prescribed by clauses 36—Overtime, and 37—Penalty rates, provided that:
(a)  where the relevant penalty rate is time and a half, the employee must be paid 175% of the ordinary time hourly rate prescribed for the employee’s classification; and
(b)  where the relevant penalty rate is double time, the employee must be paid 225% of the ordinary time hourly rate prescribed for the employee’s classification.
[14.7 substituted by PR542770 ppc 02Oct13]
14.7  A casual employee required to work on a public holiday prescribed by the NES must be paid 275% of the ordinary time hourly rate prescribed for the employee’s classification.
14.8 Casual conversion to full-time or part-time employment
…
43 In order for a worker to be a casual employee under the Award he or she must be engaged and paid as such. Clause 14.3 of the Award requires that when engaging a person as a casual employee, the employer must inform the employee in writing that he is to be employed as a casual employee.
44 In this instance Mr Banken, on his own admission, never informed the claimant either orally or in writing that he was being engaged on a casual basis. Indeed, the written contracts of employment entered into by the parties do not indicate that the claimant was to be employed as a casual. It is clear that the respondent did not engage the claimant as a casual employee in the manner required by cl 14.3 of the Award and it follows that the claimant was not engaged as a casual employee.
45 I fear that the respondent’s contention that the claimant was a casual employee is a recent invention aimed at defeating the claim. I say that because the respondent’s own time and wages record (exhibit 9) consistently records the fact that the claimant was a full-time employee. The only place where casual employee is noted is on the first page which relates to a short period prior to termination. I also note that the time and wages record produced is not an original and it appears that with respect to that period there may have been a marking adjacent to the full-time designation which has been almost but not entirely obliterated. On the face of it appears that the designation was changed at some stage.
46 The claimant’s evidence, which I accept, was that his engagement by the respondent was on a full-time basis and there was no suggestion of casual employment. I observe that such is consistent with the fact that he worked full time. I find the claimant was at all material times a full time employee.
47 What Mr Banken suggests is that because the respondent paid the claimant well above the Award rate that such evidences casual employment.
48 I reject his contention in that regard. The fact that an employer chooses to pay a full-time employee a rate well above the Award rate does not of itself convert a full-time employee’s employment from full-time into casual employment. Mr Banken asserts the respondent paid the claimant 25% more than the Award required however the fact that claimant was on a ‘good rate’ as Mr Banken puts it does not make him a casual employee.
Post Apprenticeship Claim
49 The claimant’s claim with respect to the post-apprenticeship period consists of a claim for annual leave entitlements not paid at termination together with annual leave loading thereon. He also seeks to recover unpaid annual leave loading on leave taken after his apprenticeship ended. Further he claims that he is owed entitlements for public holidays and sick leave taken which remain unpaid.
50 The claimant during the course of his employment, by virtue of cl 38.1 of the Award, accrued an annual leave entitlement. I am satisfied that at the termination of his employment he had accrued 258 hours of annual leave. In that regard, I accept his calculations set out in exhibit 1. It follows that the respondent was obliged to pay him his annual leave entitlement upon the termination of his employment. The applicable rate at termination was $40 per hour and accordingly the amount payable in that regard was $10,320. In addition, the respondent was obliged to pay the claimant annual leave loading thereon in the amount of $1,806.
51 The purported contractual arrangements entered into between the parties agreeing that the claimant would receive only two weeks’ annual leave is clearly invalid. They could not contract out of the National Employment Standard that provides for four weeks’ annual leave. Although there is scope in cl 7 of the Award to vary certain terms of the Award, it does not extend to annual leave.
52 With respect to annual leave loading I am satisfied that the claimant took annual leave in 2013 and 2014 but was not paid his annual leave loading entitlement with respect to such leave. In that regard I am satisfied that the claimant’s calculations contained in exhibit 1 are correct and that he is entitled to recover the amounts of $466 with respect to leave taken in 2013 and $560 with respect to leave taken in 2014.
53 I now move to consider public holidays taken but not paid during the post apprenticeship period. I am satisfied on the claimant’s evidence, confirmed by the respondent’s own records (exhibit 5), that the claimant was not paid his public holiday entitlements for the Christmas period at the end of 2013. In that regard, I am satisfied that he was not paid for Christmas and Boxing Days 2013 and for New Year’s Day in 2014. Similarly, he was not paid for Christmas and Boxing Days in 2014 and New Year’s Day in 2015. Further, I accept that the claimant was not paid for another six public holidays in 2014.
54 In the contract of employment signed 15 February 2014, it was agreed that the respondent would pay the claimant ‘some public holidays’. Again that provision which attempts to contract out the National Employment Standard is invalid. The Award flexibility provision in cl 7 of the Award does not assist. It follows that the claimant’s claim with respect to the payment of public holiday entitlements accrued post the apprenticeship period is clearly made out.
55 The only remaining issue for determination is whether the claimant’s claim for sick days taken in 2013, 2014 and 2015 but not paid, is made out.
56 The claim made with respect to 2013 relates to the pay periods ending 10 May and 7 June 2013. The claimant has based his claim on the respondent’s schedule (exhibit 8) which he has used to compile his own schedule (exhibit 1). I observe however, that the two schedules are not consistent. The days the claimant asserts were taken as sick days are not noted on the respondent’s schedule as being sick days taken. Rather the respondent’s records show that they were leave days taken without pay. The claimant does not find assistance from the payslips (exhibit 7) or the wages record (exhibit 9) in proving that those days taken were taken as sick days. Absent any proof coming from the claimant that he was indeed sick on those days, his claim in that regard must fail.
57 I move to consider the claim for sick leave taken but not paid in 2014. Such claim relates to the pay period ending 6 June, 8 August and 14 November 2014. Similarly, for this period the claimant bases his claim on the respondent’s schedule. Again in this instance, I observe that the schedules are not consistent in that the days the claimant records as being sick days are not similarly recorded on the respondent’s schedule. The respondent records those days as being days of leave taken without pay. There is no assistance for the claimant in other documentary evidence before the court. The claimant bears the onus of proving that he took the sick leave days claimed for which he was not paid, however there is no evidence which is capable of establishing that he took those days off as sick leave and accordingly to that extent, that part of his claim fails.
58 With respect to 2015, the claimant asserts that during the pay period ending 10 April 2015, he took four days’ sick leave for which he was not paid. In that regard, the same problems which befell him with respect to his sick leave claims for 2013 and 2014 befalls him with respect to 2015. In essence, he cannot establish on available evidence that the days taken off which he says were taken as sick leave were, in fact, taken for that purpose. The respondent’s records indicate that the claimant took leave without pay and the claimant has not produced any evidence to establish that the days claimed were in fact taken as sick leave. It follows that the claimant’s claim that regard is not proven.
Conclusion
59 The claimant’s claim is partially successful in that he has made out his claim save for the following:
1. Sick leave:
Pay period ending 7 September 2012
$145.12
Pay period ending 10 May 2013
$249.65
Pay period ending 7 June 2013
$249.65
Pay period ending 6 June 2014
$320.00
Pay period ending 8 August 2014
$640.00
Pay period ending 14 November 2014
$320.00
Pay period ending 10 April 2015
$1,280.00

$3,204.42
2. Annual leave loading:
2010
$223.23
60 Further, the claimant was overpaid $77.34 with respect to his annual leave loading in 2010 which must be taken into account.
61 The sum of the claimant’s unsuccessful sick leave claim, annual leave loading claim and the overpayment made to him should be deducted from the $20,298.96 which he seeks.
62 Taking into account the necessary adjustments I am satisfied that the respondent owes the claimant $16,793.97.






G. CICCHINI
INDUSTRIAL MAGISTRATE