Industrial Relations Commission of New South Wales CITATION: Liquor, Hospitality and Miscellaneous Union, New South Wales and Mr Con Adams [2008] NSWIRComm 1106 APPLICANT Liquor, Hospitality and Miscellaneous Union, New South Wales Branch PARTIES: RESPONDENT Mr Con Adams FILE NUMBER(S): 1495 of 2008 CORAM: McLeay C CATCHWORDS: Industrial dispute - small claim by Union arising from dispute - respondent did not appear - Commission satisfied respondent was notified of details of claim and listing for hearing - claim made out - orders made for underpayment of wages and interest LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 14 October 2008 DATE OF JUDGMENT: 17 October 2008 APPLICANT M Vance LEGAL REPRESENTATIVES: Liquor, Hospitality and Miscellaneous Union, NSW Branch RESPONDENT No appearance DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLeay C 17 October 2008 Matter No IRC 1495 of 2008 Notification under section 130 by Liquor, Hospitality and Miscellaneous Union, New South Wales Branch of a dispute with Mr Con Adams re incorrect payment of wages DECISION [2008] NSWIRComm 1106 1 The Liquor, Hospitality and Miscellaneous Union, New South Wales Branch (the union) filed a dispute in regard to the incorrect payment of wages by Mr Con Adams to a former employee, Mr Kris McVicker. Mr McVicker said he had been employed by Mr Adams as a security officer at Sydney Fish Markets. 2 Two opportunities were offered for conciliation, but Mr Adams did not appear before the Commission on either occasion, and directions were issued for the filing and serving of witness statements. At the same time, on 15 September 2008, Commissioner McKenna issued a Certificate of Attempted Conciliation, pursuant to s 135 of the Industrial Relations Act 1996. 3 Mail addressed to Mr Adams was returned from a Post Office box address, and initial email contact also proved unsuccessful. The directions issued by the Commission and the listing of the hearing scheduled for 14 October 2008 were then sent to a residential address. I am satisfied that Mr Adams received the directions and the notice of hearing because on 7 October, the day he was due to file material in response to the applicant's claim, he made a telephone call to the Commission, complaining about the materials he received from the Commission and from the union. On that basis, the hearing proceeded in his absence as scheduled. 4 Mr McVicker gave evidence that he had been employed by Mr Adams from January 2008 to work as a security officer in and around Sydney Fish Markets, acting as a building guard, patrolling the fish market site and sometimes working as a restaurant guard. Mr McVicker provided his diary showing dates and times when he worked. 5 According to Mr McVicker's evidence, despite being paid only on three times for work between 5 January and 13 February, he worked an extra few days in June 2008 when requested to do so by Mr Adams who told Mr McVicker that he wanted to correct the underpayment. He was not provided with a payslips at any time and has still not been provided with a group certificate. 6 Mr Vance, for the union, filed a detailed claim on Mr McVicker's behalf, showing the amount of wages outstanding as $3,265.51. The amount was calculated at a grade 2 salary level in accordance with the Security Industry (State) Award and the rates of pay applicable during the period of Mr McVicker's employment. I am satisfied that the claim is in accordance with the relevant award for the work undertaken by Mr McVicker. 7 The relevant legislation is set out in s 380 of the Act, as follows: (1) An industrial organisation may, during any proceedings before the Commission, make an application for an order under this Part and for the application to be dealt with under section 379 (Small claims procedure). (2) Such an application may be made only if the order is sought against another party to the proceedings. (3) The Commission must not deal with the matter until the party against whom the order is sought is given adequate prior notice of the application and an opportunity to be heard on the application. (4) The Commission may deal with the matter even though it is not constituted as the Commission in Court Session. (5) The Commission may, instead of dealing with the matter, remit it to an industrial court constituted by an Industrial Magistrate for determination. (6) An order made in accordance with this section is to be made separately from any other order in the proceedings. (7) This section is not to be construed as excluding an application for an order being made in respect of a former employee. 8 S 380 allows for small claims (under $20000) to be dealt with by the Commission as currently constituted when the application is made by an industrial organisation during any proceedings before the Commission. The claim in this case was made by the union during proceedings arising from an industrial dispute between the union and Mr Adams. The order is sought against Mr Adams. The claim made on behalf of Mr McVicker as a former employee of Mr Adams is expressly within jurisdiction pursuant to s 380(7). 9 The claim was for "the sum of $3,265.51 plus interest and costs". The mount of $3,265.51 is the amount calculated as being due under the relevant industrial instrument, the Security Industry (State) Award. Interest may be ordered on that amount pursuant to s 372 of the Act, from when the amount became due to the date of the order. Mr Vance agreed to accepting the date of 29 June 2008, being the last day worked by Mr McVicker, as the date on which the money became due for the purpose of calculating interest. The order for costs was not pressed. 10 On the day of the hearing a decision was issued and orders made. I now reiterate the decision that the finding was in favour of the union and Mr McVicker. I made no order as to costs. The orders made are as follows: ORDERS 1. I order that Mr Con Adams shall pay to Mr Kris McVicker (1) the sum of $3,265.51, and (2) interest on the amount of $3,265.51 at the prescribed rate in accordance with s 372, calculated from 29 June 2008. 2. The amount in order 1 shall be paid within 14 days of the date on which these orders take effect. 3. Orders 1 and 2 take effect on and from 14 October 2008. _____________________________ 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.