Industrial Relations Commission of New South Wales Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch v Gem Business Investments t/as Mangrove Jacks [2005] NSWIRComm 238 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. Australian Liquor, Hospitality and Miscellaneous Workers' Union, NSW Branch PARTIES: Gem Business Investments t/as Mangrove Jacks FILE NUMBER(S): IRC 6582 of 2004 CORAM: Harrison DP CATCHWORDS: Notification pursuant to s 130 of an industrial dispute re alleged breach of award - s380 application for recovery of wages - election to proceed as small claim pursuant to s379 - application not defended heard ex parte - evidence of applicant accepted - payment of wages awarded - costs against respondent - application for interest refused LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 07/04/2005 DATE OF JUDGMENT: 07/15/2005 APPLICANT Mr C Acev LEGAL REPRESENTATIVES: ALHMWU RESPONDENT No appearance JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 15 July 2005 Matter No IRC 6582 of 2004 Notification under section 130 by Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch of a dispute with Gem Business Investments t/as Mangrove Jacks re alleged breach of award DECISION [2005] NSWIRComm 238 1 This matter commenced with the filing of a dispute notification by the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch ("the union") pursuant to s 130 of the Industrial Relations Act 1996 ("the Act") on 10 November 2004. The notification identified the issues in dispute to be: A) Failure of the Respondent to maintain records in accordance with Industrial Relations (General) regulation 1996 Clause 6, Clause 8, Clause 9, Clause 10, and Clause 11. B) Failure of the Respondent to correctly classify and remunerate Ann-Marie Bailey in accordance with the Restaurants, & Employees (State) Award. 2 The matter was first listed for compulsory conference proceedings before Mr Commissioner Ritchie on 16 November 2004. On 12 November 2004 the parties advised the Commissioner that discussions were taking place between them and sought deferral of proceedings for 28 days. The matter was rescheduled to 15 December 2004. 3 The proceedings of 15 December 2004 explored prospects of settlement resulting in arrangements for the parties to further confer and report to the Commission on 25 January 2005. 4 In the proceedings of 25 January 2005 Ms Moriarty appeared for the union. Mr A Duc, an officer of the Restaurant and Catering Industry Association, appeared on behalf of Mangrove Jacks, the respondent. 5 The Commission was informed that the parties had reached an in principle agreement which had been expressed in a draft Deed of Settlement. Mr Duc, supported by Ms Moriarty, advised the Commissioner that there had been agreement that Ms Anne- Marie Bailey was employed at grade 3 of the Restaurants, &c., Employees (State) Award 321 IG 759 ("the award"), and that calculation of monies owing of approximately $7,500 had been agreed to be paid in monthly instalments over a period of four months. 6 Commissioner Ritchie noted the progress of the parties and set the matter down for a further report back on 25 February 2005 on the basis that should the parties execute settlement and file a notice of discontinuance as anticipated the proceedings would be vacated and the matter concluded. 7 Report back proceedings took place on 25 February, 7 March and 18 March 2005. The anticipated settlement did not eventuate. On 18 March 2005 Commissioner Ritchie issued a Certificate of Attempted Conciliation and gave directions for the parties to file and serve material for arbitration. 8 In accordance with directions the union filed an affidavit sworn by Ms Bailey and a claim in the form prescribed by the Act seeking payment of $8,355.68 plus interest, costs and superannuation on 6 April 2005, two days prior to the requirement to file and serve on 8 April 2005. 9 The claim confirms an election to have the matter dealt with as a small claim pursuant to s 379 of the Act. 10 The directions required the respondent to file and serve in reply by 29 April 2005. No communication or response was received from the respondent. Enquiries were made to the Restaurant and Catering Association resulting in a reply on 3 May 2005 which states: "The Respondent was required to file and serve its evidence by 29 April 2005, as per Practice Direction 16, set down by Commissioner Ritchie when the matter was previously before the Commission. We have made numerous attempts to contact the Respondent and left numerous messages. We have not received any correspondence from the Respondent in relation to this matter. Without instructions from the Respondent, we are now in a position that we have no other alternative, but to withdraw our appearance. I will forward this correspondent to Mr Chris Acev ALHMWU, who has carriage of this matter." 11 The matter was reallocated to the Commission as presently constituted and listed for compulsory conference proceedings on 17 May 2005. There was no appearance by the respondent or a representative thereof. Mr Acev, appearing on behalf the union, put an application that the matter be heard ex parte. 12 The application was deferred pending advice to the respondence of the claim and date of hearing by registered post. Mr Acev was directed to serve the claim upon the respondent by registered post. 13 The Matter was subject to further mention on 27 June 2005. On that occasion Mr Acev advised that a copy of the application had been served on Mr R Pout, a director of Gem Business Investments trading as Mangrove Jacks, by registered post as directed. An affidavit of service is filed. 14 The matter was scheduled for hearing on 4 July 2005 and the Industrial Registry directed to serve notice of the proceedings upon the respondent by registered post. Notice was so executed. 15 There was no appearance on or on behalf of the respondent on 4 July 2005. The matter proceeded ex parte. Ms Bailey affirmed her affidavit under oath. The claim is not defended. THE EVIDENCE 16 The evidence of Ms Bailey is that she commenced employment with the respondent on 27 June 2003. Prior to her employment, Ms Bailey had been employed and indentured as an apprentice chef and had successfully completed two years of a Practical and Theory of Commercial Cookery course conduced by TAFE. 17 Ms Bailey was required to work a one day trial following her interview with the then Chef, Mr Shane Springnett. Ms Bailey deposed that she believed her employment to be as a 3rd year apprentice chef and expected the appropriate indenture papers to be completed in due course. 18 Ms Bailey's evidence is that Mr Springnett told her that she was not required to record hours of work on time sheets, but to put the word "salary" and the pay mistress would know what to pay her. Ms Bailey complied with this instruction, recording all hours worked in a personal diary tendered as an attachment to her affidavit (exhibit 5). 19 Ms Bailey's evidence is that approximately one month after the commencement of her employment Mr Springnett resigned and was replaced by Mr Bartholomew Connors. Ms Bailey deposed that Mr Connors scoffed at her enquiry as to the progress of her indenture papers and was deprecating of the TAFE course. 20 Mr Connors extended the duties required of Ms Bailey from the entrée section to include desserts, assist with main meals, operation of the deep fryer and salamander, as well as involvement in stock inventory and rotation, and cleaning and preparation of seafood. 21 Ms Bailey's evidence is that she was the only female employee in the kitchen and was frequently subject to inappropriate gestures and comments from Mr Connors, which she tolerated as she did not want to lose her job. Ms Bailey deposed that on 3 November 2003 she was so upset by Mr Connors behaviour that she was unable to work and left the restaurant. Ms Bailey's evidence is that she telephoned Mr Connors at approximately 6.30 pm that day to explain why she had left, to be informed by Mr Connors that she no longer had a job. 22 Ms Bailey sought assistance from the union and following discussions with the employer she was reinstated. On her return to employment she was directed to kitchen hand duties of washing dishes and scrubbing pots and pans and was not spoken to by other members of the kitchen staff. 23 Ms Bailey worked for two weeks in these circumstances, ultimately tendering her resignation, giving one weeks notice to Mr Pout on 23 November 2003 as she concluded that there was little if any prospect of productively continuing employment and further her training. 24 Ms Bailey was rostered to work a split shift, 11.00 am to 3.00 pm and 5.00 pm to 10.00/10.30 pm, on 24 November 2003, however, after working the first section she was told by Mr Connors that she was not required for the second part of the shift. 25 The union, acting on Ms Bailey's behalf, sought access to payroll records from the respondent. These documents are attachment B to exhibit 5. 26 The detailed calculation of claim made in these proceedings and served upon the respondent in the required manner results from a comparison of the payment made against the hours recorded by Ms Bailey. 27 In the absence of any evidence or argument to the contrary the evidence of Ms Bailey is accepted. 28 I am satisfied on the evidence of Ms Bailey that there has been underpayment of wages to the amount claimed and that superannuation is payable on the amount of underpayment. COSTS 29 Mr Acev seeks an order of costs pursuant to s 373 of the Act, which states: In any proceedings under this Part, the industrial court may award costs to either party and assess the amount of those costs. 30 Section 181(2)(d) provides certain jurisdictional authority for an order of costs in proceeding for recovery of money, as provided by s 373. 31 In the circumstances of this matter it is appropriate that an order for costs in favour of the union be made. INTEREST 32 Mr Acev seeks an order for Interest pursuant to s 372 of the Act. Section 372(1) states: (1) An industrial court may order that there is to be included, in an amount ordered to be paid under this Part (except under section 368), interest at the prescribed rate on the whole or any part of that amount for the whole or any part of the period from when the amount became due to the date of the order. 33 An election pursuant to s 380 of the Act allows an application for recovery of monies to be dealt with as a small claim by the Commission, even though it is not sitting as the Commission in Court Session (s 380(4)). 34 Section 372 reserves an order for interest to an Industrial Court. In the absence of any other legislative authority as found in s 181(2)(d) in respect to costs, jurisdiction does not exist to allow an order for interest in these proceedings. 35 The application for interest must fail. 36 I so determine. Orders issue herewith. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 15 July 2005 Matter No IRC 6582 of 2004 Notification under section 130 by the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch of a dispute with Mangrove Jacks re alleged breach of award ORDERS 1. Gem Business Investments trading as Mangrove Jacks is ordered to pay to Ms Anne-Marie Bailey the amount of $8,355.68 (eight thousand three hundred and fifty five dollars and sixty eight cents). 2. Gem Business Investments trading as Mangrove Jacks is ordered to pay superannuation in the amount of $668.45 (six hundred and sixty eight dollars and forty five cents) to the account of Ms Bailey in the superannuation fund to which contributions were made during the course of her employment with Gem Business Investments trading as Mangrove Jacks. 3. Gem Business Investments trading as Mangrove Jacks is ordered to pay costs as taxed by the Registrar to the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch. I so order. The Hon. R W Harrison Deputy President AMENDMENTS HISTORY: 22/07/2005 - date of decision recorded incorrectly - Paragraph(s) caselaw judgment page DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.