T12546
Decision Appealed - See T12822
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Construction, Forestry, Mining and Energy Union, Tasmanian Branch and Crossroads Civil Contracting Pty Ltd
Industrial dispute - breach of award - standing of union to make application - standing of union to appear - effect of introduction of "WorkChoices" legislation - burden of proof - requirement to retain records - order issued REASONS FOR DECISION [1] On 3 February 2006, the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (CFMEU) (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with Crossroads Civil Contracting Pty Ltd (the respondent) (Crossroads) arising out of the alleged breach of the Building and Construction Industry Award regarding John Bailey. [2] A hearing/conference date was set for 27 March 2006. At the request of the respondent it was adjourned until 1 May 2006. On that date Mr B White appeared on behalf of the CFMEU and Mr T Brady, with Mr S Kellaway, appeared for the respondent. On that occasion there was an unsuccessful attempt to arrive at a settlement to the dispute through the conciliation process. A further hearing date was set down for 29 May 2006. Again, at the request of the respondent it was adjourned until 26 June 2006. At the request of the parties there was a further adjournment until 3 July 2006. Mr J Zeeman sought and was granted leave to appear on that day. There was a further day of hearing on 1 August 2006. [3] The award breaches alleged by the union were in relation to the following clauses of the Building and Construction Industry Award: · Clause 16: Inclement Weather · Clause 19: Superannuation · Clause 25: Meal Allowance · Clause 26: Special Rates · Clause 27: Hours of Work · Clause 28: Breaks · Clause 29: Overtime and Special time · Clause 31: Weekend Work · Clause 32: Annual Leave · Clause 33: Personal Leave · Clause 36: Public Holidays and Holiday Work · Clause 38: Amenities BACKGROUND [4] Mr John Bailey was employed as a labourer in Crossroads' asphalt division from March 2002 until April 2004. He says that he was paid $15.00 per hour for all hours worked during that time. The applicant union is claiming underpayment of wages and award entitlements for the period 17 October 2002 until 24 March 2004. [5] The CFMEU claims that Mr Bailey was a full time employee under the terms of the award and was entitled to be paid for 38 hours per week, including for times when he was stood down. In addition, the claim is for penalty payments, payment for public holidays, annual leave and superannuation. The claim is only for the period from 30 October 2002, because of the absence of any records for the period before that. [6] In 2005 the union brought an application in respect of Mr Colin Johns, alleging breach of the Civil Construction and Maintenance Award and the Construction Industry Award.1 Transcript of those proceedings was introduced as evidence in this case. [7] The claim in relation to Mr Bailey is based on time records kept by Mr Johns during the time he was the manager of the asphalt division. Mr Johns kept docket books that were filled in each day for each member of his crew. The union made calculations based upon those docket books, which were in the union's possession for a brief period of time in relation to Mr Johns' case, following which they were returned to Crossroads. Mr Johns' evidence is that he transferred the hours from the docket books to his computer each night and they were communicated to Mr Stacey, the owner/director each week. These time records were presented as evidence in support of Mr Bailey's claim for part of the period claimed for. Mr Bailey did not keep wage records. [8] One of the questions to be determined is whether the record kept by Mr Johns is a record of all of the hours for which Mr Bailey was paid. Mr Bailey at times worked for other supervisors. At issue is whether the hours he worked for other supervisors were included in Mr Johns' records or not. If they were not, then did Mr Bailey receive payment for hours not recorded by Mr Johns? A question also arises as to what Mr Bailey was actually paid each week. [9] Crossroads did not make time and wages records available either to the Commission or to the union. The union first sought access to the time and wages records on 14 April 2005. Crossroads did not present either witness or documentary evidence. JURISDICTIONAL/THRESHOLD MATTERS [10] Firstly, I deal with jurisdictional and threshold issues raised by the respondent. [11] Crossroads, by letter dated 29 June 2006, made the following request of the Commission:
[12] Section 21 provides:
[13] Mr White of the CFMEU informed the Commission per facsimile on 30 June 2006, inter alia, that:
[14] I did not issue the directions sought by the respondent. On 30 June 2006 the respondent again wrote to the Commission, saying inter alia: "Pursuant to section 29 of the Judicial Review Act 2000, we ask that you provide a written statement relating to your decision to refuse the directions sought on 29 June 2006." I did not provide the written statement sought, being of the view that it should be dealt with at the hearing after giving both parties the opportunity to be heard. [15] At the hearing on 3 July 2006, Mr Zeeman, for Crossroads, spoke to a written submission2 in which he argued that the union did not have standing to make application to the Commission in this matter or to participate in the proceedings and that the Commission would not have jurisdiction to hear an application brought by Mr Bailey on his own behalf. [16] The basis of the submissions in relation to the union's standing were that the CFMEU, as a registered organisation pursuant to Part V of the Act, is able to make applications to the Commission in respect of industrial disputes. Section 65(c) of the Act entitles an organisation to appear in proceedings in respect of an industrial dispute affecting the members of the organisation. Mr Zeeman submitted that it is a pre-condition that the dispute is one that affects a member or members of the organisation, therefore it is necessary for Mr Bailey to be a member of the CFMEU before the union can appear. Further, Mr Zeeman said, it is a requirement that: Mr Bailey be a current member; that he was a member at the time the proceeding was commenced; and that he was a member during all of the period of the alleged breach, although the latter was not pursued "with any great vigour".3 [17] He argued that the union's entitlement to make this application under s.29(1), when considered in the context of the Act as a whole, is inconsistent with the representative parameters set out in s.65(c) because it follows that the industrial dispute must be one that affects members of the organisation. The application is confined to Mr Bailey and there is no evidence to suggest that that is a breach in respect of any other person. [18] In the respondent's submission, it follows that if there is no standing to appear in the proceedings there is no standing to make an application. [19] Mr Zeeman said that the Commission's failure to issue the directions sought for discovery of the union's records of Mr Bailey's membership meant that it was unclear whether the hearing can proceed. If the union is unable to establish that it was able to make the application, or that it can appear, then the Commission is without jurisdiction to hear the matter. [20] If Mr Bailey was not a member at the relevant times then, Mr Zeeman contended, the application must be dismissed and cannot be remedied by Mr Bailey personally bringing an application because the Building and Construction Industry Award is now a Notional Agreement Preserving a State Award (NAPSA) and any application by Mr Bailey would be governed by the provisions of the Workplace Relations Act 1996 (Cth) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (WorkChoices). In the respondent's submission the Commission's jurisdiction is not preserved where alleged breaches took place before 27 March 2006 (the date that WorkChoices came into effect). [21] Mr White, for the union, submitted that the fact of an employer in Tasmania paying a $15.00 per hour flat rate did affect CFMEU members working for other employers who were paying wages as prescribed by the law, awards or agreements. He said that whilst he was happy for the Commission to view the membership records, he was not prepared to release the records of union membership and that the rules of his organisation prevented him from doing so. He said that the offer to show the records to the Commission was made on the basis that it was not to be taken as setting a precedent, but that he wanted the matter to proceed without further delays. [22] The union submitted that the Commission has jurisdiction to hear award breach matters that occurred before WorkChoices took effect on 27 March 2006, regardless of when the application was made. He said that both the Tasmanian Commission and the Australian Industrial Relations Commission had found that was the case. [23] Mr Zeeman formally asked that I rule on the application for directions in relation to the discovery of the union records, even if I were to privately view the records. I again refused to issue the directions for discovery, saying that my reasons for doing so would form part of the published decision in due course. [24] Mr Zeeman said that the refusal to do so constituted a decision and he requested an adjournment to allow the respondent to file an application in the Supreme Court to review the "decision" pursuant to the Judicial Review Act. I refused the application for adjournment, and referred to the decision of the Full Court of the Supreme Court in Port of Devonport Corporation v Abey (Port of Devonport).4 [25] After viewing the union's records in relation to the membership of Mr Bailey I was satisfied that he was a financial member of the union and was so at the time the application was made and before. It is therefore not necessary for me to rule on the questions raised by Mr Zeeman in relation to the union's standing. I did, however, say that I would provide reasons for my refusal to issue the directions sought, and, since they have been raised, I shall also make some observations in respect of the jurisdictional issues. Standing of the union to make the application and to appear [26] The section of the Act that deals with the union's standing to make an application and to appear is contained in s.65:
[27] Section 65(a) does not seem to fetter the union's right to make an application, although, read in conjunction with s.65(c) it does follow that, having made an application, the hearing which follows must concern an industrial matter affecting members of the union. The section does not impose any further restrictions, it does not specify that the members must be past members or present members, and it does not refer to the financial status of the members, nor is there any requirement that the industrial matter must affect more than one member as the plural must be taken to include the singular. [28] There cannot be any doubt that the dispute concerns an industrial matter, that is, the alleged breach of an award, which is included in the definition of "industrial matter" in s.3 - Interpretation - of the Act. [29] There is no requirement in the Act that the member or members affected by the industrial dispute must have been a member of the union for the whole of the period of the alleged breach of award, although I note that the respondent did not pursue this aspect "with any great vigour". [30] Nothing was put to me to suggest that there was any reason to believe that Mr Bailey was not a member of the union. The discovery sought, that is, that the union and Mr Bailey provide "all its records" in respect of John Bailey's membership, seemed to me to be unreasonable. The hearing of this matter had already been considerably delayed mainly as a result of requests from the respondent. [31] I think it likely that the respondent sought the production of the union's membership records in relation to Mr Bailey in the knowledge that the union would refuse to produce them, the respondent would then argue, as it did, that the matter could not proceed because of the union's refusal to do so. This would then either result in the lapse of the application altogether or a new application being made by Mr Bailey which would be dated after the introduction of WorkChoices. After 27 March 2006 the award, in respect of constitutional corporations, became a NAPSA. The respondent took this course of action in the belief that the application would then not be able to be heard in this jurisdiction. Such a belief is misconceived. Even if I had agreed with that the matter could not proceed, or had found that the union had no standing to make the application or to appear, Mr Bailey would still have been able to make application to this Commission because the alleged breaches predate WorkChoices. Effect of the introduction of WorkChoices [32] Section 16 of the Workplace Relations Act 1996 (WRA) provides:
[33] A State or Territory industrial law, as defined, includes the Tasmanian Act. [34] Sub-section (2) of s16 provides:
[35] The Regulations provide, at Chapter 2, Part 1, Division 2, Regulation 1.2:
[36] The alleged award breaches in respect of Mr Bailey occurred during the period of his employment with Crossroads, that is, between March 2002 and April 2004, predating WorkChoices by two years. Clearly, this Commission has jurisdiction to hear and determine the matter. [37] Even if I were to have found, which I have not, that the union had no standing to make the application, the matter could still have been brought back before this Commission by Mr Bailey. The whole exercise, in my view, was pointless. On the record, I expressed some concerns about the length of time it had already taken to commence the proceedings, due, in the main, to adjournments sought by the respondent. [38] For the above reasons, I refused to issue the directions sought. [39] As to the adjournment sought by Mr Zeeman in order for the respondent to file an application in the Supreme Court to review my "decision" not to issue the directions sought and my refusal to grant the adjournment, as said on the day, I refused because of the undesirability of the fragmentation of proceedings that would result from such a course of action. In Port of Devonport, which concerned a judicial review brought against a decision made by Abey C before he heard the substantive matter before him, Crawford J discussed what is meant by a reviewable decision under the Judicial Review Act. He said at paragraph 26:
[40] And, at paragraph 30:
[41] I did not grant the adjournment to allow the application for a judicial review of the proceedings because further delays and a fragmentation of the proceedings would not assist in bringing the proceedings to a conclusion. [42] I now deal with the substantive matters. EVIDENCE [43] Witnesses for the applicant were Mr John Bailey and Mr Colin Johns. [44] The respondent presented no evidence, either documentary or oral, excepting in relation to the claim for superannuation. Colin David Johns [45] Mr Johns testified that Crossroads employed him from 2000 to 2004 as asphalt foreman. Mr Bailey had worked with him from March 2002 to April 2004 performing "stop/go" traffic control and general labouring in the asphalt division. Mr Bailey and Mr Johns had been good friends for over 20 years, had been in the army together, and when Mr Bailey got out of the army and needed a job Mr Johns suggested him to the owner of Crossroads, Mr Dale Stacey, who agreed to employ him. [46] His evidence was that Mr Bailey was paid $15.00 per hour. Ninety per cent of the work Mr Bailey did whilst at Crossroads was for Mr Johns. He had never told Mr Bailey whether he was permanent or temporary. He did not know whether the employees were paid for leave, or paid penalty rates, or paid when they were stood down because of rain or lack of work.
[47] Mr Johns said that Mr Bailey had done:
[48] Mr Johns kept a docket book in relation to the hours of work Mr Bailey worked in each week:
[49] The docket books contained:
[50] He had directed the work performed by Mr Bailey:
[51] Mr Johns said that Mr Dale Stacey would have possession of the docket books now, because they "went back to Crossroads". [52] Tendered as evidence was a computer record of hours worked by Mr Johns' asphalt crew, showing each employee, their start and finish dates, total daily and weekly hours on a week by week basis from 7 November 2002 until 22 October 2003.10 It was Mr Johns' evidence that those hours were the same hours as were in the docket books.
[53] When cross-examined, Mr Johns said that Crossroads were in possession of the same records. He recorded the hours every night and he printed them out and they were provided to Mr Stacey every week, or every two weeks. [54] He said that all the hours Mr Bailey worked were included in the records he kept.
John Arthur Bailey [55] Mr Bailey's evidence was that his period of employment with Crossroads was from March 2002 to April 2004 as a "stop/go" person and a general labourer and driver. When he was employed he was not told that it was on a casual basis. His belief was that he was full time: "...I believed that I was on full time so I just kept on working."13 Colin Johns directed him at work, told him when to work and when to finish and kept the records of his hours at work. At the end of each week he was given an envelope with money in it. He did not know if superannuation was paid, he had never received a statement. He did not receive payment for any leave, including public holidays, meal allowances, payment for fares or travel, penalty rates for weekend or public holiday work, or rostered days off. He was paid $15 per hour for all hours for the whole period of his employment. [56] Mr Bailey's Payment Summaries (group certificates) were tendered as evidence.14 Also tendered was a letter from Tasbuild, Portable Long Service Leave Scheme, dated 2 February 2006, following up on a request from Mr Bailey regarding his service with Crossroads. In the letter, Mr Michael Mundy the Manager Operations, said that Crossroads had advised that:
[57] A second letter from Tasbuild, dated 23 February 2006, was received by Mr Bailey, which said:
[58] The statement sets out a start date of 1 March 2002, an end date of 8 April 2004 and records a total of 377 days.15 [59] Mr Bailey said he found it "strange" that Crossroads, who said they had no records, were able to state that he had worked for them for 377 days. [60] Mr Bailey was shown the time records kept by Mr Johns16 and a spreadsheet upon which the union based the claim.17 [61] Mr White explained to the Commission that the spreadsheets had been prepared from the docket books previously referred to, which had been in his possession during the time of the previous hearing before Abey C in relation to Mr Johns' claim against Crossroads. In the absence of time and wages records, which had been sought but not provided, he used the docket books to prepare the spreadsheets setting out the calculations for the claim. Mr White had handed the docket books back to Crossroads. [62] Mr Bailey was taken through the records in detail, on a day-by-day basis. He testified that: he had public holidays off but was not paid for them; on ordinary weekdays for which no hours were recorded he would have been able to work; he knew which days he was to work because Colin Johns directed him the day before; he was not paid overtime penalties for days in which he worked in excess of eight hours; he was not paid penalty rates for weekend work; he was stood down over the Christmas period and was not paid for that time; on days when he worked less than eight hours he would have been available to work for the whole day; on days when he did not work at all he would have been available to work; he had not been paid for days when they were unable to lay asphalt because it was raining and those days were not recorded in Mr Johns' records. [63] Mr Bailey stated several times that he would always have been available to work, apart from a period of five weeks in February 2004 following surgery, which he had told Colin Johns about. He did not provide a doctor's certificate, nor was he asked for one, but, "more to the point", he did not provide one because there was "no point" because he would not have been paid. [64] When cross-examined about his belief that he was a permanent full-time employee he said that he had not raised the question of non-payment when he was stood down or lack of paid leave because of ignorance about "civilian" law after his many years in the army and he just assumed that his employer would be paying him correctly and "everyone else was being paid the same and I assumed that was the normal thing that was happening."18 [65] In relation to the records kept by Mr Johns, Mr Bailey said that he did not know there were docket books but he did know there were computer printouts. He had not asked Mr Johns to keep the records, but he had seen them. He had not kept a diary of hours himself. His own pay records had only comprised an envelope with his name written on it and a piece of paper with a figure written on it. He agreed that his claim was solely based upon the records kept by Mr Johns. [66] Mr Bailey was shown a document which was a transaction history of contributions made on his behalf into an AMP SuperLeader account, which showed contributions made beginning 4 March 2003 and made at approximately 3 monthly intervals until 30 June 2004. Mr Bailey said that he had not received anything to show that superannuation was paid by Crossroads, nor was he aware that he had a SuperLeader account. [67] Mr Bailey's evidence under cross-examination was that he had always held himself available for work for every day of his entire period of employment, excepting for one time when he had surgery, and that on any day that he was at work he would have been available to work for the whole of the day. He said he was single and had no family and would have no reason to take time off. He did not recall ever going home sick. He said that where the records showed that he only worked for a few hours in a day it could have been raining or he could have been working in another section, it could have been a machinery breakdown, "it could have been anything". [68] He said that when he worked for other foremen they kept their own records:
[69] Mr Bailey agreed that his evidence as to when he was at work was based on Mr Johns' time sheets but denied that they could have been made up in support of his claim.
[70] Mr Bailey's evidence was that he believed the records were "a true and correct copy". He denied that he had "come along for the ride" following Mr Johns' claim for underpayment of wages in 2005. He said that the claim was a result of checking up on whether any superannuation contributions had been made; he had gone to the union about that and the union informed him that he was owed wages. SUBMISSIONS Mr White for the applicant [71] Mr White submitted that when Mr Bailey was first employed by Crossroads he was covered by the Civil Construction and Maintenance Award, which provided at clause 15 for weekly employment unless specifically employed as a casual employee. Mr Bailey was not told he was a casual employee. It is not disputed that he was paid $15.00 per hour. The pattern of employment was not that of a casual employee. [72] The Building and Construction Industry Award superseded the Civil Construction and Maintenance Award on 1 October 2002. The evidence showed that John Bailey was a bitumen worker and traffic controller, as provided for at Grade 2 - Construction and Maintenance Worker. Clause 8 of the award provides:
(i) Except as to casual employees, the employment of plant operators and civil construction and maintenance workers in the classifications contained in subclauses 13(c) and 13(d) of this award shall be by the week. (ii) A casual employee is one engaged and paid as such. ..." [73] The evidence shows that Mr Bailey was not a casual employee and that most award entitlements were not paid. In addition, statutory entitlements were not complied with; he was not registered with Tasbuild until February 2006, almost two years after termination and only after intervention by the union. [74] The union formulated two periods of the claim on the basis of the docket books; these were 17 October 2002 until 6 November 2002 and 23 October 2004 until 24 March 2004. The claim for the period 7 November 2002 until 22 October 2004 is based upon the records kept by Mr Johns on his computer, Exhibit A1. [75] Mr White submitted that the amounts shown on Mr Bailey's group certificates were consistent with the union's claim, and he provided some detail in support of that contention. [76] According to Mr White, the evidence given in Colin Johns' case by Mr Stacey, the owner/director of Crossroads, showed that there were periods when members of Mr Johns' team were stood down:
[77] Mr Bailey's evidence was that he was ready and willing to work, and, pursuant to s.46(4) of the Act, he should be paid for those days when he was not provided with work. [78] For the period from 26 January 2004 to 20 February 2004 Mr Bailey was off work sick and should have been paid sick pay. The award says that an employee must prove to the employer's satisfaction that he was not able to attend because of sickness or injury. Mr Bailey told his boss, Mr Johns, that he was going into hospital for surgery and Mr Johns did not ask him for a sick leave certificate, so he must have been satisfied that was the truth. [79] Mr White said that Mr Bailey was not aware that superannuation had been paid and that, in the absence of agreement with the employee, it should have been paid into C-BUS or Tasplan in accordance with clause 19 of the award. He said that the respondent is obliged to pay any cost associated with rolling the money out of the AMP and into an industry fund. [80] The union has applied the principles set out in Matthewson v The Egg Marketing Board,22 a decision of this Commission, and has calculated the claim exactly the same way as in the case of Sachman v KR and YM Best Joinery. (Sachman)23 Logan v Otis Elevator24 also supports the method of calculation as does Filipetti v Carter's Earthmoving,25 where the New South Wales Chief Industrial Court decided that over award payments cannot be offset against a claim for annual leave. No part of the $15.00 per hour was designated as being for annual leave or stand down purposes and therefore could not be set off against the over-award payment. Mr White provided details of the calculation in respect of the claim.26 [81] The applicant is claiming for 17 unpaid public holidays, 19 unpaid sick days, unpaid overtime penalties, wages for days when Mr Bailey was stood down without pay either for whole or part of a day, and for annual leave entitlements, plus superannuation to be paid into the appropriate fund. Mr Brady for the Respondent [82] Mr Brady said that the respondent would not be calling any witnesses because the union had failed to establish its claim. The applicant has the onus of proving its claim and the evidence they had brought was inconsistent and relies upon questionable documents and questionable statements from witnesses. [83] He said that that Mr Bailey did not keep his own records and the claim is founded on records given to Mr Bailey by Mr Johns. Whilst Mr Johns was the manager of Crossroads, he was also Mr Bailey's best friend for over 20 years and had made his own [underpayment] claim against the respondent therefore Mr Johns' records must be considered with great caution. Only Mr Johns can know whether it is accurate. [84] A review of Mr Johns' evidence in his own case shows that he said that if Mr Bailey's name did not appear on a certain day, then he could have been working for some other Crossroads foreman:
[85] Mr Johns' evidence [in the instant case] was that he would include the hours worked elsewhere in the records he kept. At paragraph 286 he said:
[86] Mr Brady said that Mr Johns' evidence in this case is inconsistent with his evidence in the previous case. [87] He referred to Mr Bailey's evidence, at paragraph 1094, which was that the other foremen kept their own hours: "Well, when I worked for the other sections they were the people who told Dale Stacey how long I worked. They kept their own records..." [88] The union claimed that all the hours recorded were all the hours worked and paid for and that any absences should be taken to mean that he was ready, willing and able to work, but, in the absence of any wage records it is not possible to tell whether Mr Bailey was paid, or not, for any hours not shown on Mr Johns' time sheets. [89] In Mr Brady's submission, the Commission cannot take either Mr Johns' evidence or his record of hours into consideration. Mr Johns kept the records on his computer at home and that information could have been manipulated. There is only the evidence of Mr Johns to say that they are accurate and his evidence cannot have any weight attached to it and should be dismissed. [90] It therefore follows that the spreadsheet of the claim that has in the majority been derived from Mr Johns' records cannot be relied upon. Mr Johns' evidence was that he did not know what Mr Bailey was actually paid, whether he was paid overtime, sick pay, and holiday pay, or not. [91] Mr Brady said that it was not necessary to bring Mr Stacey or payroll personnel to give evidence as to what was paid to Mr Bailey because there was nothing to respond to, as the claim had not been established. [92] He said that the applicant's contention is that Mr Johns' records demonstrate full time employment and that Mr Bailey is therefore entitled to leave and other entitlements. However, the onus has not been discharged to demonstrate every aspect of the claim; the foundation upon which it is built is not accurate, as is shown by Mr Johns evidence in this matter and the previous matter. [93] Mr Bailey's evidence demonstrates a total reliability on the record kept by Mr Johns. The employer does not have the time and wages records. Section 75(2) of the Act says:
[94] Mr Brady said that it was his understanding that Workplace Standards interpret that section as meaning that an employer only has to keep the record for twelve months after the employee finishes work and that "it may well be" that Crossroads has acted in good faith and adhered to that advice. [95] In relation to the claim for sick leave, the onus is on the employee to claim sick leave [at the time]. Regarding superannuation, there was an agreement between the employer and employees that AMP was the default fund. [96] Mr Brady submitted that the application should be dismissed on the basis that, because of the inconsistencies, the applicant has failed to establish the claim. FINDINGS [97] A feature of this case is the amount of time spent on the question of record keeping. Had the employer made the time and wage records available then many of the questions raised could have been answered quickly and easily. Had the employer made himself or some appropriate person available to give evidence in relation to the basis on which Mr Bailey was paid, then, similarly, many of the questions could have been dealt with expeditiously. The employer did neither. [98] Mr Brady informed the Commission that Workplace Standards had advised him that s.75 of the Act enables an employer to destroy the records 12 months after the employee leaves their employ. [99] The belief that wage records can be destroyed on the first anniversary of the last day of employment is wrong in certain circumstances, including in the circumstances of this case. Section 75(1) provides:
[100] The Regulations at 27(2)(b) specify what is required; the record is to be retained for at least twelve months after the last entry. [101] The Industrial Relations Regulations at Part 4 - Miscellaneous - Regulation No. 27 - Record of employees requires the employer to keep, under s.75(1) of the Act, the following information:
[102] The employer is required to retain the records and continue record-keeping where appropriate for twelve months after the termination (s.75(2)) and is required to retain the record for twelve months after the last recording of any of the information required to be kept (R.27(2)(c)). Therefore, if there have been no further payments to the employee or to a superannuation fund on behalf of the employee after they cease work then the record would not need to be kept beyond twelve months from the last day at work, but if there were further payments to the employee or on their behalf into a superannuation fund then the record would need to be retained for a further twelve months after the last entry. [103] The mandating of the keeping of records for 12 months after the date of the last entry in the records is particularly relevant in this case because Exhibit R6 shows the last superannuation contribution into the AMP SuperLeader account on Mr Bailey's behalf being made on 30 June 2004, therefore all of the records of employment should have been retained until at least 30 June 2005. The union sought access to those records on 14 April 2005. [104] The records were never made available to either the union or to the Commission. Mr Brady said that the respondent did "not have the time and wage records", saying that Mr Stacey had contacted Workplace Standards whose interpretation of the Act is that the time and wages records can be destroyed twelve months after the last day of employment. From that I think I am meant to infer that Crossroads has destroyed the records. [105] The evidence seems to indicate that the records were available to Crossroads until at least February 2006. The application to the Commission was made on 3 February 2006. Between 2 February 2006 and 23 February 2006 Crossroads was able to provide Tasbuild, Portable Long Service Leave Scheme, with details of the exact number of days worked by Mr Bailey, which they must have based on their records. If the wage records were indeed destroyed then it seems probable that occurred after the notification to the Commission of a dispute in relation to Mr Bailey's wages. If that is the case, then the decision of the employer to destroy the wage records in the knowledge that there was a dispute in relation to those wages would seem to indicate that the records would not have assisted their case. If the wage records were not destroyed and simply not produced, then that would seem to indicate the same thing, that is, that the records would not have assisted the employer's case. Even if there were no wage records retained by Crossroads it was still open to them to lead evidence to refute the applicant's claim. They chose not to. No personnel with knowledge of the payroll were called to give evidence. [106] Mr Brady said that the respondent did not call any witnesses because the union had failed to establish its claim and the burden of proof lay with them to do so. Generally, the party who brings the claim has a duty to make out the case. Mr Brady said that "there was nothing to respond to" and that was the reason the respondent would lead no evidence. This is an extraordinary submission given the large amount of time spent in the taking of evidence from the applicant's witnesses and the significant number of documents produced. No evidence was brought in rebuttal of the claim. [107] It was not put to Mr Johns that his records were inaccurate. His evidence was: "Oh, they are accurate, yes". That was not challenged in cross-examination. Mr Brady said during submissions: "only Mr Johns can know whether it is accurate". That is not so, Mr Stacey would have known whether they were accurate or not. The unchallenged evidence is that they were provided to Mr Stacey on a regular basis. He was a person in a position to know (a) whether other foremen provided him with information about the hours Mr Bailey worked and (b) whether it was the practice of the company to pay employees when they were stood down. The rule in Jones v Dunkel28 is that where a party fails to bring evidence which is open and available to them to bring and it would have been expected that they would bring that evidence, then the inference that may be drawn is that that evidence would not have assisted that party. Whilst the Commission is not bound by rules of evidence, in the circumstances of this case, where no evidence whatsoever was led by the respondent, and where people with knowledge of the events did not give evidence, in particular, Mr Stacey, the owner/director, then I infer from that that the evidence that could have been brought would not have assisted the respondent. [108] There appears to be no dispute that for the entire period of his employment Mr Bailey's rate of pay was $15.00 per hour. Nor does there appear to be any serious challenge to the applicant's contention that the $15.00 per hour applied to any and all hours worked by Mr Bailey. His evidence is that he was not paid overtime or penalty rates. [109] I find that Mr Bailey was paid $15.00 per hour for all the hours he worked during the period of his employment with Crossroads. [110] It was not challenged that the Building and Construction Industry Award and its predecessor the Civil and Construction Maintenance Award are the relevant awards and I so find. [111] Both awards require that an employee be engaged as a casual; meaning that the casual status must be established at the point of engagement. The unshaken evidence of Mr Bailey and Mr Johns was that Mr Bailey was not told that he was a casual employee when he commenced employment. Mr Johns' evidence was: "I never told him he was permanent and I never told him he was casual. That was day one, but, no, I didn't tell him".29 Both witnesses were clearly untutored in the distinctions between classes of employee and it is likely that the question never came up - he was simply an employee to them. [112] A casual employee is one "engaged and paid as such". An alternative position put by the union at the commencement of proceedings was a claim for underpayment of wages based on the casual rates. That claim amounted to approximately $12,000. [113] The pattern of employment outlined in the records and in the verbal evidence shows a regular and systematic pattern of employment, notwithstanding times of stand-downs due to weather and other factors. Mr Johns' unchallenged evidence was that the asphalt crew worked 8 to 12 hours a day, five days a week plus weekends when needed. [114] I find that Mr Bailey was neither engaged nor paid as a casual employee and was not a casual employee under the terms of the award. [115] The question of whether or not Mr Bailey was paid for the times he did not work is more difficult. It follows that if he is not a casual employee, then, under the terms of the award, he must be a weekly employee and therefore entitled to be paid for 38 hours per week, provided that he is ready and willing to perform that work. Section 49(4) of the Act provides:
[116] Despite extensive cross-questioning, Mr Bailey maintained that he was always ready and willing to work. His evidence was unshaken and convincing. [117] The evidence shows that there were periods when employees were stood down. Mr Johns' records show short days and days not worked. Mr Bailey's evidence was that the most likely explanation for short days was rain. Machinery breakdown could account for some of it. The Act requires that Mr Bailey be paid for times when he was stood down, as he undoubtedly was. The evidence establishes that he was stood down without pay. Mr Stacey's own evidence in Colin Johns' case was that Mr Johns was in the habit of rotating his crew so that: "He wouldn't stand the whole team down. He'd leave a couple down, and he change them around the next week so people were still getting money. Mr Bailey's evidence was that he was not paid when he was stood down. [118] On the basis of that evidence, and in the absence of any evidence to the contrary, I find that Mr Bailey was not paid when he was stood down and is entitled to be paid for the any shortfall between the ordinary hours he was paid for in any one week and 38 hours. [119] The question to be determined is not how many ordinary hours Mr Bailey should have been paid - the answer to that is 7.6 hours per day or 38 hours per week, but whether he has already been paid for them. [120] As already noted, the question of what Mr Bailey was actually paid each week could have been determined easily by the production of the time and wages records. [121] There are, as submitted by Mr Brady, inconsistencies in evidence given by Mr Johns in this case and in the previous case going to the question of whether all the hours that Mr Bailey worked are included in his records. His evidence in his own case suggests that other foremen may have recorded some of those hours, whereas in the instant case his evidence was that he recorded all of Mr Bailey's hours and his wages were paid on those hours only. The extract from the previous transcript, which was referred to by the respondent in their submissions, was not put to Mr Johns in cross-examination. He was given no opportunity to attempt to explain the differences in the evidence. Nor was the suggestion that the records had been manipulated to support Mr Bailey's claim put to Mr Johns in cross-examination and I shall disregard that part of the submission. [122] Mr Bailey's own evidence was that the other foremen kept their own records. It was clear that Mr Bailey had very little knowledge of the administrative side of things, he had not seen the docket books and he did not check the time sheets. I think it likely that Mr Bailey really did not know who recorded the hours he worked for other foremen. [123] Mr Stacey is the person best able to give evidence in relation to the question of which foremen provided what hours to him for pay purposes. Mr Johns' evidence was that he communicated the hours to Mr Stacey each week and provided him with the records. Mr Stacey could have testified as to whether or not the hours provided by Mr Johns were all of Mr Bailey's hours or whether other foremen also provided him with Mr Bailey's hours. Or the other foremen could have been called. No such evidence was given. [124] The respondent did not at any stage contend that Mr Bailey was paid for the hours he was stood down. Mr Brady said "Well, who can determine whether he was, or wasn't paid? That is the question?" Their submission was limited to an argument that the applicant had failed to discharge its onus of proof to establish the claim. [125] The failure of the respondent to bring any evidence, in particular, the failure to bring any evidence about the pay practices in relation to stand-downs means that the only evidence is that which was brought by the applicant. Mr Brady said that the evidence was unreliable. I do not agree. I found the witness evidence believable. Objective evidence in the form of Mr Bailey's group certificates and the superannuation contributions made by the employer support the calculations provided by the union, which were based upon Mr Johns' records. [126] I find that Mr Bailey was not paid for the hours he was stood down and that those hours are the difference between the ordinary hours recorded on Mr Johns' time sheets and thirty-eight hours in each relevant week. I find that Mr Bailey was not paid award entitlements in respect of public holidays, overtime penalties, and weekend penalties, or for annual leave. The union's claim has been calculated according to settled law in relation to over-award payments and offsetting. [127] I am disallowing the claim for sick leave. Mr White said that the claim was calculated on the same basis as in Sachman. In that case Abey C disallowed the sick leave claim. At paragraph 71 he said:
[128] I agree with Commissioner Abey. Mr Bailey felt that there was "no point" in making a claim because he thought that he would not have been paid. I dismiss that part of the applicant's claim. [129] The applicant claimed superannuation on wages paid (and wages underpaid). It appears that superannuation contributions have been made on the amount that Mr Bailey was paid at the time he was working, albeit the first contribution was made one year after he commenced work with Crossroads and was made into an account of which he had no knowledge. Mr Brady submitted that there was an agreement that the contributions be made into the AMP SuperLeader account but there was no evidence in support of that. The applicant also sought the payment of any costs associated with transferring the superannuation out of the SuperLeader fund and into an industry fund. Nothing was put to me that such costs had been incurred even if I were to find that I had jurisdiction to make such an order. I make no orders in relation to superannuation excepting for the superannuation contributions to be paid on the amount of wages underpaid. If there are further claims in relation to superannuation payments they can be pursued in the appropriate way. [130] The claim for meal allowance was abandoned during the proceedings. [131] For the reasons set out in this decision, I am ordering that the employer pay: Annual leave $3297.00 ORDER I herby order pursuant to s.31 of the Act that Crossroads Civil Contracting Pty Ltd pay Sixteen Thousand Four Hundred and Eighty Dollars and 25 Cents in settlement of all claims in Matter No T12546 of 2006 SAVE AND EXCEPTING FOR the claim in relation to superannuation AND THAT Crossroads Civil Contracting Pty Ltd pay superannuation contributions on the amount herein ordered such payment to be made to a fund nominated by John Bailey AND THAT all payments herein are to be made by 5.00pm on Wednesday, 18 October 2006. P C Shelley Appearances: Date and place of hearing: 1 T12268 of 2005 Abey C. CFMEU v Crossroads Civil Contracting Pty Ltd 25 January 2006
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