T12373
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Kristen Alexander Fyle and MD & TJ Ryan
Industrial dispute - application amended - alleged breach of award or registered agreement - order issued REASONS FOR DECISION [1] On 28 October 2005, Kristen Alexander Fyle (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with MD & TJ Ryan (the respondents) arising out of an alleged breach of award or registered agreement. [2] This application was assigned to Commissioner T Abey on 28 October 2005. The matter was listed for hearing (Conciliation Conference) on 28 February 2006 at The Court House, 19 King Edward Street, Ulverstone, Tasmania. [3] On 2 March 2006, Commissioner Abey requested that the file be reassigned by the President, stating that:
[4] The application was reassigned to Commissioner JP McAlpine on 2 March 2006. [5] The matter was listed for hearing on 22 June 2006, and 26 and 27 July 2006 at The Court House, 19 King Edward Street, Ulverstone, Tasmania. [6] The applicant stated he was employed for a period in 1998 by MD Ryan, the first named respondent. Subsequently, in 2003 and 2004, he was employed by the partnership of MD and TJ Ryan, the respondents. The applicant carried out the same range of duties under similar operational parameters. At all times he was employed on a casual basis. [7] The applicant alleged that during the whole time he worked for the respondents his employment wages and conditions were governed by the Transport Workers General Award (the Award). [8] The applicant claimed he was only ever paid a flat hourly rate. The respondents acknowledged that for the periods of employment in 2003 and 2004, the applicant was paid a flat rate. However, during the earlier engagement in 1998 the respondents asserted the applicant was hired on the basis he would a receive a one-third portion of the carting receipts. [9] The applicant asserted that no payments to a superannuation fund were made on his behalf during 1998 by the respondents. The respondents rejected this claim. The applicant further claimed underpayment of superannuation for 2003 and 2004. [10] Mr G Williams, for the respondents, raised two threshold issues: [11] The first issue was that a separate application would be required for the initial engagement of the applicant in 1998, because the employer was Mr Ryan, sole employer, at the time. The partnership with TJ Ryan, against whom the application was raised, only came into being some time during 2000. [12] The second threshold issue was that of the application of the Limitations Act 1974 to the matters pertaining to the 1998 period of engagement. [13] The claim (as amended) before the Commission is for under payment of wages and a penalty payment for time waiting for payment of outstanding wages, as well as payment of superannuation contributions. BACKGROUND [14] Mr M Verney, for the applicant, argued there had been an ongoing employment relationship between the parties from 12 February 1998 until 21 September 2004. He stated:
[15] And further:
[16] In 1998 the applicant was employed for most of the months of February, March, and April, for two days in May and part of a week in October. Although the remuneration arrangements are somewhat vague it appears he worked for five hours on one day in 2001, for Mr Ryan directly; however, matters during this period are not for consideration in the instant application. [17] In 2003 the applicant was employed for most of October and November, and for five days in December. He also stated that he had sub-contracted to the respondents for a period in 2003; again matters during this unspecified episode are not for consideration in the instant application. [18] In 2004 the applicant worked for most of January, February and March. From March until September 2004, the applicant was in receipt of Workers Compensation payments as a result of a workplace injury. [19] Mr Williams rejected the notion of a continuous period of employment, citing the lengthy periods between employment episodes when the respondents did not hire the applicant. He raised the fact that the applicant ran his own business and was employed by other local businesses during the period in question. Also the matter that the respondents only became a trading entity in the year 2000 was raised is support of the respondents rejection of the claim. [20] Mr Williams stated:
[21] In 1998 the applicant claimed he was paid a flat rate of $10 per hour. The applicant could not produce timesheets for that period nor wage statements showing on what basis he was paid. He did however tender a list of times and dates, which he asserted were copied from his work diary of the period4. He also alleged it was his practice to keep diary notes of the hours he worked every day. The original 1998 diary was not produced in evidence. [22] When questioned the applicant said he had made a summary of the information from his diary some two years after the event, in case he needed to refer to them at some stage. He also asserted that it was his practice to regularly make a summary of the contents of his diaries for reference purposes.
[23] And further:
[24] Mr Williams asserted the alleged diary summary was a fabrication:
[25] And:
[26] No evidence was presented to verify the applicant's assertion that the practice of summarizing his diaries was indeed a "regular" occurrence. [27] No evidence was educed which could intimate there was any dispute between the parties at the time over actual payments or the basis of such payments. Indeed, when questioned the applicant could not recall at what point in time he had come to the realization that he had not been paid according to the award. [28] Mr Williams asserted the respondents had an arrangement with the applicant during the 1998 period whereby the applicant was paid a one-third portion of the gross receipts invoiced by Mr Ryan to the producers for whom he carted. The arrangements were allegedly based on a verbal agreement at the time. The respondents each gave consistent accounts of the carting process, weighbridge ticketing, invoicing and subsequent payment procedure to the applicant. Pay sheets showing the method of payment9 and some corresponding weighbridge dockets10, were submitted in evidence by the respondents. It was acknowledged by the respondents that the records were incomplete. It was also pointed out by the respondents that there was no legal requirement for the business to retain such data beyond seven years. [29] The applicant denied any knowledge of the income sharing arrangements. In response to questions put by Mr Williams, he stated:
[30] And:
[31] And further:
[32] Mr Williams asked the applicant if he had submitted time sheets in 1998:
[33] And:
[34] And further:
[35] The applicant eventually changed his evidence by moving from submitting timesheets to submitting pieces of paper and making telephone calls to record his hours of work.
[36] At a juncture earlier in the proceedings, however, Mr Verney informed the Commission that the applicant was required to submit timesheets for the periods he worked in 2003 and 2004. By omission, this response suggests there was no requirement for the applicant to submit timesheets in 1998.
[37] For the periods of employment in both 2003 and 2004 with the respondents, MD and TJ Ryan, it was not disputed the applicant was paid at a flat rate for each period. Mrs Ryan, for the respondents, agreed that they paid "industry rates" prevalent at the time which may or may not have bettered the award rates. [38] Mr Williams stated that the applicant had exaggerated the hours he claimed and gave examples of disputed start times. A further anomaly was alleged where the applicant was said to have worked in "tandem" with another driver, Mr Jason Sinfield, where the hours of work claimed by the applicant were allegedly significantly greater. Tandem operation would suggest approximately the same time would be worked by both drivers over a particular work cycle. [39] Mr Williams gave a comparison between the hours logged by the applicant and those of Jason Sinfield over specified periods. The comparison19 was constructed for these proceedings by a third party. The third party did not submit to giving evidence. Although supporting data was submitted, it was argued by the applicant that it was somewhat imprecise and could not be relied on as a time comparison. [40] The applicant denied he had ever worked in tandem with any other driver.
[41] However, a witness, Mr Dean Raymond Minchin, suggested that the applicant did work in parallel with another driver, although he did not use the expression "in tandem". In response to a question by Mr Williams, he stated:
[42] And:
[43] And further:
[44] Mr Verney argued the timesheets submitted by the applicant were never challenged and that the respondents had always paid for the number of hours logged. Evidence provided by the respondents verified the actual hours submitted by the applicant, in the main, were paid.24 [45] Mr Williams argued the respondents had challenged the applicant with regard to three discrepancies, albeit well after the alleged discrepancies occurred and payment was made. [46] The respondents described how the start and finish times were generally governed by the people to whom they were contracted and that for much of the time it was they who scheduled the drivers' routines. It was admitted by the respondents that, Mr Ryan did not routinely check the employees' time sheets, trusting instead on their employees "honesty". [47] Mr Verney argued the applicant had never taken a meal break while working for the respondents. In evidence the applicant insisted he ate on the run and did not utilize any idle or "down time" to take a meal break. He asserted any "down time" he incurred was taken up attending to maintenance of the vehicle and other work related activities. He also claimed that he was not aware he was expected to utilise "down time" to take meals and rest breaks. [48] At the following various paragraphs of transcript:
[49] The respondents challenged the veracity of the applicant's claims. Mr Ryan asserted it was well understood and common practice in the industry to take breaks as the opportunity arose. The witness, Mr Minchin, also gave a different account of events during down times.
[50] Mr Verney alleged that in 1998 the respondents failed to pay the applicant superannuation. He did not provide anything to substantiate this claim. [51] Mr Williams produced documentation showing superannuation payments were made by the respondents on the applicant's behalf.32 Although incomplete, the documentation illustrates that there was a procedure in place whereby superannuation payments were made. FINDINGS [52] This matter was before Abey C on 28 February 2006, by way of a conciliation conference. Only evidence presented at the hearings before myself has been considered. [53] This application revolves around very few issues: was the applicant an employee of the respondents during the periods in question; what was the nature of the employment; and, was he paid appropriately for his endeavours? Further, because evidence was presented which could not be substantiated, witness credibility is a significant element in deciding an outcome. [54] I turn to the two threshold issues. [55] The first issue: should a separate application be required for this Commission to hear those aspects of the instant matter where the applicant was employed by MD Ryan, then a sole trader? [56] The fundamentals of the business do not appear to have changed throughout the time the applicant was associated with the "Ryan" business. The operation of the business followed a consistent routine, carting the various crops as they came available when harvested. There was no evidence to show that, to an employee, there was any discernable change experienced as a result of the business change from MD Ryan to MD & TJ Ryan. [57] It is my view the business was transmitted and, as such, the new entity carries both the assets and liabilities of the original entity. I find the instant application is sufficient for this Commission to arbitrate on issues raised over the entire time period in question. [58] Mr Williams argued that the Limitations Act 1974 should apply to the period of initial engagement in 1998, with more than six years having elapsed. The Act is silent on the issue of "limitation" other than for specific procedural requirements. In particular, he cited from Part II, Division 2:
[59] It has been acknowledged by the parties that the applicant was an employee during the times in question and it follows that employment contracts existed, albeit verbal. However, at the outset of the hearing it had not been established that a "simple contract" existed for the period in 1998. In Breach of Award matters, this Commission seeks to have the monetary shortfall resulting from any award breach recouped, it does not award damages.
[60] The reference to an "award" in this clause, I believe, refers to an "order to be given as payment, penalty" or " payment awarded" it cannot be taken to specifically embrace industrial awards. [61] Further, I am at a loss to locate any precedent in the realm of award matters where the Limitations Act 1974 has had effect. [62] I find that in the application of the Act, with respect to award breaches, the Limitations Act 1974 does not have effect. [63] Mr Williams made much of applicant's alleged mala-fides. The substance of various episodes related by Mr Williams regarding the applicant's business and private affairs have no bearing on the instant matter. I make it clear, I put no weight on the substantive aspects of situations detailed. However, I have taken into account inconsistencies in and the nature of responses where I believe credibility is a factor. [64] Mr Williams attempted to persuade the Commission of the malice that had driven the applicant to initiate these proceedings. This Commission considered the evidence before it with regard to an alleged breach of award; the individual's motivation in bringing the action is not a factor to be considered. [65] Further, Mr Williams made a concerted effort to show the applicant had a working knowledge of the award system. The applicant's knowledge of the award system, or lack of it for that matter, has no bearing on the substantive matters at hand. [66] Mr Verney was adamant the applicant enjoyed a "constant period of employment" with the respondents from 1998 until 2004. At one point in the proceedings he disingenuously accused the Commission of having already made up its mind with regard to the validity of this position. At this juncture, I now consider the issue of the alleged ongoing employment relationship. [67] It was acknowledged by the parties that at all times under consideration the applicant was a casual employee. It was acknowledged by both parties that he worked seasonally in 1998, 2003 and 2004. [68] It was also common ground that the applicant ran his own security business and worked for other local employers during the period in question. [69] The relevant definitions in the Act are as follows:
[70] I find there is nothing prescribed in the Transport Workers General Award that enhances the above definitions. [71] The applicant was a casual employee and as such was engaged by event, and at the cessation of that event the employment relationship ended. Should a casual worker be re-hired, the employment relationship starts afresh. There was no obligation on the part of the respondents to re-engage the applicant at any time, nor offer continuity of employment. [72] Mr Verney referred to a "constant period of employment". The Concise Oxford Dictionary defines "constant" as: "unremitting, frequently occurring" [73] The applicant's employment with the respondents exhibited no "constant" characteristics. Five years separated the initial periods as an employee of the "Ryan business". The applicant took advantage of other employment opportunities and business ventures during the period in question. [74] I find nothing to substantiate the applicant's position that he had on "ongoing employment relationship" with the respondents. This was a frivolous stance to adopt devoid of reason and logic. [75] I also find the applicant's employment with the respondents was of an irregular, casual nature and, as such, each employment episode stands independently of the others; it follows there was not an ongoing employment relationship. [76] This Commission has been asked to accept the applicant's summary of dates and times of hours he worked during 1998 as being factual. The applicant relied on this information to support his argument that he had been paid under the award rate. [77] The Commission has also been asked to accept the applicant's word that he never took meal breaks. Without tangible evidence to support the applicant's position I must address the credibility of his evidence, the evidence of the others who took the stand, and apply my evaluation to the overall decision. [78] I accept Mr Williams introduced matters not directly related to the instant application that may have been disconcerting to the applicant. I have discounted the applicant's responses where it was clear he might have been avoiding self-incrimination in matters in other jurisdictions. However, throughout the proceedings the applicant persistently gave circuitous responses and avoided directly answering questions. He contradicted himself on numerous occasions. He persistently claimed he failed to recall events and, in particular, failed to recollect signing, what appeared to be, significant correspondence. [79] The applicant vehemently denied the assertion regarding his reasons for allegedly withdrawing from a recruit course at the Tasmania Police Academy. When asked to give a reason he maintained he could not recall. When asked which month in 1997 he left the Police Academy, again he claimed he could not recall. From documentation submitted as evidence33 the applicant "Had successfully completed all training provided by the Tasmania Police Academy" in April 1997. To terminate the opportunity of a career with Tasmania Police after successfully completing the course is, in my view, a significant event. It is inconceivable that the applicant could not recollect the details surrounding the event, nor the timing of his decision to withdraw. I do not believe his answers were truthful. [80] The issue of a business owned by the applicant being the subject of a matter previously before this Commission was raised. The applicant claimed he could not recall the matter. He could not recall receiving notification from the Commission of the matter to be dealt with. He denied responding by letter to the Commissioner, even though the details were quoted to him. It was put to the applicant that in the Commissioner's findings on aspects of his business' mode of operation was referred to as a "sham". He had just denied any knowledge of the matter claiming "this was the first I've heard of it. Who said that?". But then he responded:
[81] It is incongruous when presented with clear evidence of his involvement, the applicant first denied then asserted he failed to recollect any of the activity surrounding a matter before this Commission three years previously. Further, having denied any knowledge, he defends the position that was an element of the basis of the matter before the Commission. It is my view these were not truthful responses. [82] The applicant was asked to identify a document he had allegedly signed with respect to an insurance claim. The document required the applicant's authority for a particular action to take place. The document was made out to "KA Fyle" the signature is remarkably similar to that of the applicant's on other documents presented in evidence on his behalf. He denied having seen the document. His response:
[83] The applicant denied seeing the document, yet was unsure if it was his signature on it. I find the contradiction suspicious. [84] The applicant was asked to confirm that it was his signature on a document relating to repaying overpayments he had received during his time on Workers Compensation.36 He claimed he did not recall signing it. The signature is remarkably similar to the applicant's signature in Exhibits A7 and A9, and to the other signatures he refused to acknowledge. The document, Exhibit R5, is very clearly headed "Agreement to repay workers compensation overpayment"; however ,the applicant persistently insisted he was asked to repay superannuation payments, not overpayments of Worker's Compensation monies. [85] After much denial, the question was put to the applicant, had he been asked to repay Superannuation payments. His response was as follows:
[86] The applicant showed that his earlier evidence was simply a fabrication. Further casting doubt on his credibility. [87] At a point after the instant matter was lodged with the Commission, it was acknowledged that the applicant and Mr Ryan had a late night telephone conversation regarding the matter. The applicant described the conversation as "pleasant".
[88] The conversation, from Mr Ryan's evidence was that, it was heated, foul language was used and accusations were exchanged. [89] Given the purpose of the call and the circumstances around which it had occurred, I do not to believe the applicant's depiction. [90] During the applicant's last period of engagement with the respondents, he suffered a work injury and was the recipient of Workers Compensation payments. [91] During the course of the applicant's dealings with the Workers Compensation insurer he admitted to citing the necessity for him to assist with changing tyres as an example of "heavy lifting" which may impede his rehabilitation. [92] Mr and Mrs Ryan gave evidence that the particular truck the applicant drove for them did not carry spare tyres. They said the business has a contract with a local company, Lockett and Reeves, who's job it is to supply and fit replacement tyres on a breakdown basis. Simple business logic would support the respondents version of the situation. I am of the opinion the applicant somewhat exaggerated his involvement in the tyre-changing activities, for his own purposes at that time. [93] In his evidence the applicant insisted he was always busy during downtimes maintaining the vehicle and with other unspecified work-related tasks. The extent of the maintenance that he claimed was carried out by him during downtimes is devoid of any commonsense. Mr Minchin's depiction of the extent of the maintenance the applicant would have carried out is far more realistic. Further, the applicant contradicted himself by acknowledging that he took the opportunity to read during downtimes. Mr Minchin, in his evidence, confirmed the applicant would read and chat with others during downtime. [94] In summary, I found the applicant's evidence was peppered with inconsistencies, exaggerations and contradictions. In my view, he demonstrated an abject dearth of credibility throughout the proceedings. [95] The evidence given by Mr Ryan was clear and unambiguous. He was consistent throughout the giving of his evidence and did not deflect or circumvent questions. He presented as plausible, although amazingly naïve in matters of people management. I am of the belief that he answered the questions honestly and bluntly, to the point of exposing his less than competent business practices, together with his lack of understanding of award and superannuation matters. [96] Mrs Ryan: I found her to be clear and direct in her evidence and knowledgeable about the operation of the business. She was cooperative and responded consistently under cross-examination. She did not present as duplicitous in any way. She managed her way around a diversity of documentation with efficiency, even when further information was requested by the applicant or his representative. Her unqualified acknowledgement, that she paid all her employees in 2003 and 2004 on a flat industry rate as opposed to the award, in my view, reflected the straightforward, open approach she presented at the proceedings. [97] In my view, Mr Minchin answered the questions asked of him honestly and without fuss or bias. [98] I find that the applicant's handwritten list of hours and dates for 199840 cannot be relied upon as factual. The evidence given by the respondents, although incomplete, is more plausible and carries considerably more credibility than the applicant's. The fact that Mr Verney confirmed the applicant was required by his employer to specifically submit timesheets in 2003 and 2004 adds more weight to the respondents' version of the employment arrangements in the 1998 period. [99] I reject the applicant's claim, that he was paid a flat rate of $10.00 per hour throughout 1998. I accept the respondents' evidence that the applicant contracted to work for a portion of the carting revenue in 1998. [100] The question arises: was the hourly wage rate equivalent of his remuneration at least the same as the award? Without credible evidence of the hours worked to match against the quantum of wages, one cannot determine an hourly rate. It follows that a comparison against award rates cannot be done. I dismiss the claim of breach of award with regard to under payment of wages for 1998. [101] The applicant claimed that no superannuation had been paid by the respondents on his behalf in 1998. He produced no evidence to support his assertion. [102] Mrs Ryan produced documentation that contradicted the applicant. It clearly showed there was a process in place to pay superannuation, and evidence of payments. I find the applicant's claim for superannuation unsubstantiated and it is dismissed. [103] I turn to the years 2003 and 2004, and the applicant's assertion that he never took meal breaks. [104] It was clearly illustrated by the respondents and Mr Minchin that the industry practice was to take meal breaks during downtime. This sensibly coincided with the break in activities of the harvesters, as an example. Commonsense would support their view of the practicalities of such a system. [105] The applicant's assertion that he was not aware of the practice of taking meal breaks to coincide with breaks during operations is just not believable. His assertion, it was always his practice to carry out work-related tasks during downtime was shown by his own evidence, and that of Mr Ryan and Mr Minchin, to be untrue. [106] I do not accept the applicant's position that he never took a meal break anytime during his three major periods of engagement with the respondents, nor that he was forced to eat on the run on every single occasion. I find the probability was that he did take breaks, meals and other breaks, in line with the accepted practice as outlined by Mr Ryan. [107] Mr Williams argued there were further discrepancies regarding time keeping compared to a "tandem" driver. In my view this was a management issue that should have been dealt with at the time. It is not for this Commission to participate in process of management. [108] Mr Verney alluded to the calculations in the applicant's monetary claim41, all being based on an assumed award rate of $17.93 per hour regardless of the year to which the rate applied. The document is vague and short on verifiable data. It is not for this Commission to act as the applicant's accountant. This ambit claim does not assist the arbitration process in the slightest. [109] The respondents' calculation42 of outstanding monies, is clear as to the basis upon which the calculations were made. It has been prepared with rigor enough to show the applicant claimed for the same day, twice on two different occasions, and was paid on both accounts, this matches the applicant's own time sheets.43 [110] Mr Verney asserted that Clause 32(i) of the award, which provides for a monetary penalty to be imposed for the late payment of wages, applied to applicant's claim in this matter. My reading of the clause is that it applies where an employee is kept waiting an unreasonable time after the cessation of his wage cycle to receive his wages. [111] In the instant matter, as shown in the applicant's own Exhibits, he received his wages as agreed at the time and in a timely manner. I find that Clause 31(i) of the award does not apply. [112] By their own admission, I find the respondents did not pay the prescribed award rates to the applicant whilst he was in their employ in 2003 and 2004. I accept the logic of their calculations of outstanding monies as being realistic. I reject the applicant's ambit claim. [113] During the applicant's time on Worker's Compensation, the respondents paid superannuation on his behalf; a benefit to which he was not entitled. This money cannot be recouped and remains in his account. I find any monies outstanding with respect to the underpayment of superannuation for the time the applicant was directly employed in 2003 and 2004 are more than offset against the superannuation accumulated on his behalf to which he was not entitled. [114] The dispute with respect to any alleged Worker's Compensation under payments must be directed to that jurisdiction. I make no finding in that regard. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T12373 of 2005, that MD & TJ Ryan pay to Kristen Alexander Fyle the sum of four thousand and eighteen dollars and sixteen cents ($4,018.16) in reparation for under payment of wages for the time he was directly employed during 2003 and 2004, by close of business on 20 December 2006.
James P McAlpine Appearances: Date and Place of Hearing: 1 Transcript, PN 255
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