Industrial Relations Commission of New South Wales in Court Session CITATION : Heather Alison Maciver v Hilton Nursing Home Pty Limited [2000] NSWIRComm 56 APPLICANT: Heather Alison Maciver PARTIES : RESPONDENT: Hilton Nursing Home Pty Limited FILE NUMBER: 513 and 1788 of 1997 CORAM: Schmidt J Unfair contract - further judgment - outstanding issues concerning claim for meal allowance and calculation of net monies - too late for the meal money claim to be advanced - net monies to be calculated by application of ATO PAYE Fact Sheet CATCHWORDS : Recovery of remuneration - disposal of proceedings CASES CITED : Vision Publishing Pty Limited v PK Holdings Pty Limited (1998) 84 IR 277 HEARING DATES: 03/23/2000 DATE OF JUDGMENT: 04/20/2000 APPLICANT: Mr R Moore of counsel SOLICITORS: Moin & Associates Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr A Moses of counsel SOLICITORS: Fishburn Watson O'Brien Solicitors JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 20 April 2000 MATTER NUMBER IRC 513 OF 1997 HEATHER ALISON MACIVER -v- HILTON NURSING HOME PTY LIMITED Application under section 106 of the Industrial Relations Act 1996 MATTER NUMBER IRC 1788 OF 1997 HEATHER ALISON MACIVER -v- HILTON NURSING HOME PTY LIMITED Application for recovery of money under section 365 of the Industrial Relations Act 1996 FURTHER JUDGMENT 1 Judgment in this matter was given on 20 April 1999. The parties were unable to agree upon appropriate orders. A supplementary judgment was given on 13 August 1999 concerning matters of quantification, interest and costs and the parties were directed to file final orders within 21 days. 2 Further difficulties arose in relation to the calculation of the monetary order and the calculation of the net sum upon which interest would flow. The matter was relisted on 14 December, when the applicant agreed to file written submissions prior to the end of the law term and the respondent, prior to the commencement of the law term in January 2000. The applicant's submissions were forwarded under cover of a letter of 8 February and the respondent's were filed on 2 March, with the respondent at that point still not having quantified the money sums in question. 3 The matter came back into the list on 9 and on 23 March, after further documents had been filed, when the parties' final positions were put. The outstanding issues concern a claim for payment of meal allowance and the calculation of net monies upon which an order for interest is to be calculated. 4 As to interest, it was common ground that it should be payable from 5 February 1997, the date upon which the application brought under s106 of the Act was filed. The meal money claim 5 As to this claim, finally agreed to be quantified at $3,948.00, it was submitted that the amended summons filed on 9 June 1998 claimed remuneration 'inclusive of all allowances, penalty payments and the like payable under the said awards'. It followed, so it was put, that the monetary orders should include a component for meal allowances, on a particular basis identified in the submission filed. 6 For the respondent it was submitted that a claim for meal money had not been expressly sought in either the summons relied upon or in the application brought under s365 of the Act and could not be pursed without amendment of the initiating process and leave to reopen the case. It was also submitted that no explanation had been advanced as to why this claim had not been the subject of evidence or submissions at the hearing. Reliance was placed upon Vision Publishing Pty Limited v PK Holdings Pty Limited (1998) 84 IR 277, as to the importance of cases being conducted on the basis of both parties knowing what case they were being asked to meet. 7 The total money claim advanced at the hearing, as noted at pp4 to 5 of the judgment of 20 April, concerned claims in respect of excess hours worked and unpaid penalties. The applicant's approach to calculation of the monetary order was dealt with at p45. While the general words of the amended summons are wide enough to comprehend a claim for meal money and reference was apparently made to such a claim in the response given by the applicant to the respondent's request for particulars (exhibit 49), it was not a matter dealt with at the hearing, either by way of evidence, submission or quantification of the claim, particularly not in the way now taken up in the submissions which the applicant filed. 8 Reference was also made to exhibit 35, in which the applicant identified her hours of work. This is not a sufficient basis for the view now to be taken that a claim for meal allowance was pursued at the hearing. 9 In those circumstances, I take the view that it is too late, at this stage of the proceedings, for this claim to be so advanced. The consensus of the parties is that without this aspect, the monetary order to be made is properly quantified at $54,460.46. That sum will be reflected in the orders which I now make. The net sum 10 As to the question of the calculation of the net monies, the applicant's submission was that this figure was to be calculated by application of ATO PAYE Fact Sheet Number 6203, 'Backpayment of Salary and Wages'. 11 The respondent's position was that the net sum was properly to be calculated by reference to the marginal tax rates applicable to the applicant in the financial years 1988/89 to 1995/96. No submissions were advanced to explain this approach and it was eventually submitted by Mr Moses for the respondent that "it is unnecessary from discussions which I have had with my friend, to engage in a dispute before your Honour as to the issue of the taxation treatment. The orders that we primarily contend for are those to be made in appendix 1". This was a reference to two versions of the orders filed by the applicants under cover of a letter of 22 March. Appendix 1 was the orders reflecting the view that it was too late for the meal money claim to be advanced. 12 In those circumstances, I take the view that the proper course is for the applicant's approach to the calculation of the net sum in appendix 1 to be accepted. The orders I now make reflect this conclusion. 13 For the reasons given, I order: In Matter No. IRC 513 of 1997: 1. The contract made on or about 9 February 1989 between the Applicant and the Respondent whereby the Applicant performed work in the nursing home industry until 15 April 1996 is declared to have been an unfair contract under section 106(1). 2. The said contract is to be varied as such as to provide: (a) that the Applicant in the period 9 February 1989 to 15 April 1996 be paid a remuneration equivalent to that paid to an employee classified as Clerk Grade 5 under the relevant awards then applying in the private nursing home industry. (b) that the remuneration of the Applicant be calculated in the periods as identified below by reference to the following total hours worked by the Applicant: (i) In the period 9 February 1989 to 30 October 1994: 45 hours per week (ii) In the period 31 October 1994 to 31 December 1994: 47 hours per week (iii) In the period 1 January 1995 to 29 August 1995: 51 hours per week (iv) In the period 30 August 1995 to 18 December 1995: 49 hours per week 3. That the Respondent pay to the Applicant an amount of $54,460.46 in connection with the said contract as varied together with interest from 5 February 1997 to date of Judgment calculated on the net amount of $33,621.46 and continuing thereafter in accordance with Schedule J to the Supreme Court Act 1970. 4. That the Respondent pay the costs of the Applicant as agreed or assessed. In Matter No. IRC 1788 of 1997: 1. That the Application be dismissed upon the basis that the Orders made by the Commission in Matter No. IRC 513 of 1997 fully satisfy any Orders which would have otherwise been made in relation to the said Application. 2. That the Respondent is to pay the Applicant's costs as agreed or assessed.' ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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