Industrial Relations Commission of New South Wales CITATION: Liquor, Hospitality and Miscellaneous Union v. Kekatos [2008] NSWIRComm 1077 APPLICANT Liquor, Hospitality and Miscellaneous Union PARTIES: RESPONDENT George Kekatos, trading as CityCorp Security FILE NUMBER(S): IRC 924 of 2008 CORAM: Connor C CATCHWORDS: industrial dispute - failure to pay wages to former employee - identy of employer - status of employer - small claim mounted - onus of proof - interest on wage claim - order made Corporations Law 1996 LEGISLATION CITED: Industrial Arbitration Act 1040 Industrial Relations Act 1996 Federal Workplace Relations Amendment (Work Choices) Act 2005 Dima Homes Case (1989) 5 AILR Rep.4 General Pants (Trading) Company Pty Limited v. Marie - unreported CASES CITED: Grimshaw v. Dunbar (1953) 1 All ER 350 Maldoc Pty Limited v. Bollard - unrepresented Rochford v. Textile Clothing and Footwear Union of New South Wales (1998) 85 IR 332 State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1 HEARING DATES: 23/09/2008 EXTEMPORE JUDGMENT DATE : 23 September 2008 APPLICANT Mick Vance Liquor, Hospitality and Miscellaneous Union LEGAL REPRESENTATIVES: RESPONDENT no appearance DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Tuesday, 23 September, 2008 Matter No IRC 924 of 2008 Liquor, Hospitality and Miscellaneous Union and George Kekatos, trading as CityCorp Security Dispute notification under S.130 of the Industrial Relations Act, 1996 re underpayment of wages DECISION [2008] NSWIRComm 1077 Preliminary 1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Liquor, Hospitality and Miscellaneous Union lodged a notification of an industrial dispute with Mr George Kekatos, trading as CityCorp Security Services, alleging the incorrect payment of wages to Mr Roy Kemp, its members formerly employed by it under the terms of the Security Industry (State) Award. The matter was allocated to me and I set it down for a conference on Wednesday, 2 July, 2008. There was no appearance on behalf of CityCorp Security. I adjourned the proceedings for a further mention on Wednesday, 30 July, 2008. Again there was no appearance by CityCorp Security. I adjourned the proceedings for further mention on Thursday, 14 August, 2008. When there was still no appearance by CityCorp Security, I programmed the matter for hearing on Tuesday, 23 September, 2008, issuing the certificate of attempted conciliation in terms of S.135 and lodging it in the prescribed manner. 2 The LHMU claim on behalf of Mr Kemp has been pressed as a small claim under Ss.379 and 380. In particular, S.380(1) provides as follows: "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 S.379 (small claims procedure)." That remedy is available only to an "industrial organisation" recognised under the 1996 Act. That position was confirmed by the Full Bench of the Commission (Glynn and Hungerford JJ and Connor C) in its unreported decision of Wednesday, 10 February, 1999 in Maldoc Pty Limited v. Bollard [Matter No. IRC 2710 of 1997] ie. the LHMU in these proceedings. The maximum amount of any order for a small claim is confined by S.379(3); it presently stands at $20,000.00 for each individual employee. 3 Mr Vance represented Mr Kemp and the LHMU in the hearing on Tuesday, 23 September, 2008. He called Mr Kemp to give evidence in the hearing. There was again no appearance in the proceedings by Mr Kekatos. I proceeded ex parte to determine the matter. The Claim 4 Mr Kemp worked for Mr Kekatos for eleven days - from Monday, 4 February, 2008 to Monday, 18 February, 2008 - on 12 hour shifts. He worked as a mobile security officer for the western region of Sydney in a patrol referred to as Charlie 2, checking alarms and ensuring particular premises were secure. That work is properly categorised as a Grade 2 security officer under the Security Industry Award. Mr Kemp received $1,000.00 in cash in part payment of his wages from Mr Kekatos, with assurances from him that the remaining wages due to him would be paid later. He has received no further payment from him. Nor has he received a group certificate for the period he worked for him. And because of his dissatisfaction with the wage he was receiving when he worked for Mr Kekatos, he performed no further work for him. 5 The LHMU's claim on behalf of Mr Kemp in this hearing on Tuesday, 23 September, 2008 is for the balance owing to him, a sum of $2,227.55, plus interest. Such interest may be payable at the prescribed rate for a small claim under S.372(1), viz: "An industrial court may order that there is to be included, an amount ordered to be paid under this Part (except under S.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." The "prescribed rate" in S.372(1) is the rate of interest set from time to time in Schedule J of the Supreme Court Rules [S.272(4)] - presently I understand that to be 9%. The Identity of the Employer 6 The actual identity of Mr Kemp's employer has become an issue in these proceedings. CityCorp Security Group Pty Limited, with Mr Kekatos as a director, was placed in administration on Friday, 14 March, 2008. No doubt it would be regarded as a trading corporation for the purposes of S.51(xx) of the Commonwealth Constitution. By virtue of the 2005 Federal Workplace Relations (Work Choices) Act, there are currently certain restrictions imposed on the State Commission in dealing with industrial disputes involving S.51(xx) corporations [State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1]. As far as S.51(xx) corporations are concerned, with Work Choices the Security Industry Award became a "notional agreement preserving a State award" [a NAPSA] - and which, as I understand the position, is currently the subject of review in the "award modernisation" processes of the Australian Industrial Relations Commission. 7 But, in my opinion, it does not automatically follow that the S.130 notification by the LHMU against a S.51(xx) corporation is jurisdictionally incompetent as a result of Work Choices. In exercising the small claims jurisdiction provided by Ss.379 and 380 and providing orders to enforce an existing entitlement for an employee, the complexion of these S.130 proceedings changes. As S.364(1)(b) makes plain, a member of the State Commission hearing a small claim under Ss.379 and 380 becomes an "industrial court" and to that extent at least any restrictions flowing from Work Choices which might otherwise apply to S.130 proceedings against S.51(xx) corporations in general cease to have application. An "industrial court" is defined in S.364(1)(b) as including: "…in the case of proceedings under S.380 (small claims during other Commission proceedings) - the Commission whether or not in Court Session…" Local courts remain entitled to enforce entitlements under any State award (or any Federal or State industrial instrument) and it appears that members of the State Commission, in exercising the small claims jurisdiction of Ss.378 and 380 of the State IR Act are similarly empowered. 8 Nevertheless, the fact that CityCorp Security has been placed in administration would still have an impact on the LHMU claim on behalf of Mr Kemp. Such proceedings would be stayed by virtue of S.440D [Part 5.3A] of the 1996 uniform Corporations Law (S.500(2) of the 2001 Corporations Act), without the leave of the State Supreme Court or the administrator's consent [Rochford v. Textile Clothing and Footwear Union of New South Wales (1998) 85 IR 332 at p.332]. 9 In any event, investigation by Mr Vance, representing the LHMU in the proceedings, has convinced him that, in fact, Mr Keketos, not CityCorp Security, actually engaged Mr Kemp. In discussions Mr Vance had with the administrator for CityCorp Security he was informed that there was no record of Mr Kemp having ever worked for the company and no group certificate has been forthcoming from it. It must follow that Mr Kekatos engaged Mr Kemp independently of CityCorp Security and paid him in cash. In those circumstances, the Security Industry Award continues to apply to him in its present form and it does not become a NAPSA - nor is it subjected to the "award modernisation" processes of the Australian Commission. Such is the confusion that currently attends industrial relations at present. Ex Parte Proceedings 10 In the Dima Homes Case (1989) 5 AILR Rep.4 the Full Bench of the former State Industrial Commission (Bauer J, Varnum DP and Sheils CC) commented that for compulsory conference proceedings taken under S.25AA (the equivalent of Ss.379 and 380 in the 1940 Industrial Arbitration Act) that: "…the only essentials are proper and fair notice and sufficient particulars to regulate the decision making process…" 11 Therefore Mr Vance still carries the onus of establishing to my satisfaction that Mr Kemp is owed the sum he claims and that remains the position in any ex parte proceedings - see, for instance, the unreported decision the Full Bench of the Commission (Fisher J - President, Schmidt J and Murphy CC) on Thursday, 8 September, 1994 in General Pants (Trading) Company Pty Limited v. Marie [Matter No. IRC 3123 of 1993 at p.18]]. Obviously, the evidence of Mr Kemp in that respect, provided by way of affidavit, speaks for itself. 12 Also in proceeding ex parte to determine this matter, I must be satisfied that Mr Kekatos was aware that the LHMU claim on behalf of Mr Kemp was proceeding to be determined in the hearing. Any respondent is entitled to have a matter heard in his presence. Mr Kekatos is entitled to dispute his opponent's case, cross-examine his opponent's witnesses, call his own witnesses and give such other relevant evidence before the court. If by some mischance or accident a party is shut out from the right to do so, any order made in his absence would constitute a denial of natural justice [Grimshaw v. Dunbar (1953) 1 All ER 350 at p.355]. But, of course, Mr Kekatos may not escape its responsibilities in these proceedings by simply failing to appear in them. 13 I am satisfied that Mr Kekatos was aware of these arbitrated proceedings since he was informed of them in the customary manner by a notice to its registered business address and also by facsimile transmission. In that notice is the following unambiguous comment: "...If there is no attendance by you or your agent, counsel or solicitor on the date specified in this appointment or as notified to you subsequently, the proceedings may be heard and an order may be made in your absence..." Mr Vance has also written to Mr Kekatos at his address according to the electoral role, informing him of the LHMU claim on behalf of Mr Kemp and of the hearing on Tuesday, 23 September, 2008. Order 14 In those circumstances, I make the following order. ORDER 1. Mr George Kekatos shall pay to Mr Roy Kemp: (a) the sum of $2,227.55; and (b) interest at the prescribed rate in accordance with S.372; within 14 days. 2. This order shall take effect on and from Tuesday, 23 September, 2008. P J CONNOR Commissioner 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.