Bateup v Mornington Shire Council [2025] QIRC 61

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bateup v Mornington Shire Council [2025] QIRC 061 PARTIES: Bateup, Mark Wayne (Applicant) v Mornington Shire Council (Respondent) CASE NO: B/2024/3 PROCEEDING: Application – Recovery of Unpaid Wages DELIVERED ON: 27 February 2025 MEMBER: Power IC HEARD AT: Brisbane ORDER: 1. The Application is granted. 2. Within 21 days of the date of this decision, the Respondent to pay the Applicant the full amount of unpaid wages and annual leave entitlements accrued as at the date of termination without deduction, subject to the appropriate taxation. CATCHWORDS: INDUSTRIAL LAW – RECOVERY OF UNPAID WAGES – Respondent paid for employee's relocation costs – Applicant resigned employment within probationary period – Respondent withheld an amount from final payment as reimbursement of relocation costs – applicant seeks recovery of amount withheld – whether Respondent lawfully deducted amount of relocation costs from final payment – whether Applicant had authorised deduction of amount in accordance with s 371 of -- 1 of 10 -- 2 the Industrial Relations Act 2016 (Qld) – deduction not authorised. LEGISLATION: Acts Interpretation Act 1954 (Qld), s 14A Industrial Relations Act 2016 (Qld), s 3, s 4, s 38, s 370, s 371, s 475 Reasons for Decision Introduction [1] Mr Mark Bateup seeks to recover unpaid wages pursuant to s 475(1)(a) of the Industrial Relations Act 2016 (Qld) ('IR Act'). [2] Mr Bateup's Unpaid Wages Claim contends that he is owed wages, unpaid annual leave and annual leave entitlements, and unpaid superannuation. Mr Bateup subsequently advised the Commission that superannuation had since been paid. [3] Following unsuccessful attempts at conciliation, the matter was referred for determination. The issue to be determined is whether the Mornington Shire Council is required to pay Mr Bateup the amount claimed following his termination of employment. Relevant history [4] Mr Bateup ('the Applicant') commenced employment with the Mornington Shire Council ('the Respondent') on 1 September 2023. Mr Bateup was employed as Manager Infrastructure Delivery. [5] Upon commencement of his employment, the Applicant signed a Letter of Appointment containing the terms and conditions of his employment provided by the Respondent. [6] Included in the Letter of Appointment were clauses requiring the reimbursement of relocation expenses in particular circumstances and deductions from employee's pay for debts owed to the Respondent. [7] The Respondent paid an amount of $3,788.74 to reimburse the Applicant for his relocation expenses ('the relocation amount'). [8] The Applicant ceased employment with the Council on 20 December 2023. [9] The Applicant's employment ended within his 6-month probationary period. [10] The Respondent withheld the relocation amount from the Applicant's final payment of wages and entitlements. -- 2 of 10 -- 3 [11] The Applicant seeks an order that the Respondent pay an amount of $3105.97 withheld from his final payment, noting that superannuation has been paid. Relevant legislative provisions and authorities [12] The application for unpaid wages is made in accordance with s 475 of the IR Act. Section 475 of the IR Act provides: 475 Power to recover unpaid wages and superannuation contribution etc. (1) On application by a person under section 476, the commission may order payment of the following for the period of 6 years before the date of the application— (a) an employee's unpaid wages; (b) an apprentice's unpaid tool allowance under section 137; (c) remuneration lost by an apprentice or trainee because the employer has contravened section 371(2); (d) contributions to the approved superannuation fund payable for an eligible employee that are unpaid. … [13] Section 371 of the IR Act provides the following – 371 Wages etc. to be paid without deduction. (1) If an employer employs an employee to perform work for a fixed rate, the employer must pay the employee the fixed rate without deduction, other than a deduction authorised by— (a) a relevant industrial instrument; or (b) this division; or (c) the employee's consent. (2) An employer must pay an apprentice or trainee the fixed rate without deduction, other than a deduction mentioned in subsection (1)(a), (b) or (c), until the apprentice or trainee is suspended or the apprentice's or trainee's training contract is cancelled. (3) Subsection (4) applies if— (a) an employer employs an employee to perform work for a rate agreed between the employer and the employee; and (b) either— (i) the rate for the work is not fixed by a relevant industrial instrument or permit; or (ii) the fixed rate is less than the agreed rate. (4) The employer must pay the employee the agreed rate without deduction, other than a deduction authorised by this division or the employee's consent. -- 3 of 10 -- 4 (5) If an employee's consent authorising a deduction to be made from wages is not written, before making the deduction, the employer must give the employee written acknowledgement of the consent. (6) A contract or authority is void to the extent it provides for a deduction to be made from wages in contravention of this section. [14] Section 38 of the IR Act is outlined as follows - Payment for annual leave on termination of employment (1) This section applies if an employee's employment is terminated by the employee or employer. (2) If the employee has not taken all the annual leave the employee is entitled to, the employee is presumed to have taken the leave from the day the termination takes effect (the termination day). (3) The employer must pay the employee for the annual leave not taken, including— (a) any public holiday during the period the employee is presumed to have taken the leave; and (b) any annual leave loading the employee is entitled to under section 36. (4) If the employee has worked part of a year, the employer must pay the employee the proportionate annual leave for the part of the year the employee worked, including any annual leave loading the employee is entitled to under section 36. (5) The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless an applicable industrial instrument states otherwise. Evidence [15] The Applicant filed an affidavit in which he outlined the following in summary – a) The Respondent's Letter of Appointment is unenforceable due to a breach of contractual conditions to provide a reasonable, adequate, and safe accommodation with internet. b) During the interview process the Respondent advised that the Applicant would be supplied a house and internet. Upon arrival, the Applicant and his partner were provided with accommodation in a dilapidated Donga without internet. c) After making a complaint, the Respondent advised that all the defects would be repaired while the Applicant was on leave. However, upon return from leave, no repairs had been carried out. d) At a meeting with the Applicant's Director and CEO a week before his employment ceased, the Appellant's resignation was raised by the CEO, however, no mention was made in regard to repayment of any monies to the -- 4 of 10 -- 5 Respondent. The Applicant took this to mean that the Respondent would not be pursuing any monies. e) The Respondent has demanded outstanding monies allegedly owed. f) The Applicant did not receive a final pay slip or separation certificate. g) The Applicant estimates the amount of unpaid wages and entitlements to be $3105.97, however, outstanding superannuation has been paid. [16] The Respondent filed an Affidavit by Mr Kenneth Tapfield, Manager Human Resources. In this Affidavit, Mr Tapfield outlined the following – a) At the time of the Applicant's commencement there was a lack of available housing or accommodation and as a result, the Applicant and his partner were provided with accommodation in a Council owned Donga. b) The Applicant provided feedback to the Respondent regarding the state of the Donga and requested that his concerns be addressed whilst on leave. c) Although wi-fi and internet services are available on Mornington Island, the location of the Applicant's Donga did not permit this. There were, however, other locations and areas where he could access the wi-fi and internet services either from his computer or mobile phone. d) The issue of poor wi-fi and internet connection is an island wide issue that needs to be addressed by Telstra. e) The Respondent commenced work on the improvements to the Donga whilst the Applicant was on leave. f) Due to the remote location and staff shortages, the Respondent experienced difficulties in completing the remaining work. g) As part of his relocation, the Applicant incurred an expense of $3,788.84 and despite requests to the Applicant to repay the debt in accordance with his contract of employment, he has made no effort to do so. h) The Respondent has withheld the Applicant's final payment pending resolution of his debt to Council in accordance with his contract. [17] The Applicant filed an affidavit in reply stating, in summary, that he would not have taken the position if the Council had advised that he would not be supplied with a reasonable, safe, and adequate accommodation. -- 5 of 10 -- 6 [18] The Applicant states that the Council failed to advise him of any monies owed at the time of completion of his employment and that it does not have the legal right to garnish wage for alleged monies owed regardless of what was written in the contract. Consideration [19] The Applicant seeks an order that the Respondent pay the final payment that has been withheld ('the deduction') pending resolution of an alleged debt. [20] The Council have withheld the Applicant's final payment to satisfy a debt they contend is owing following payment of his relocation expenses. [21] The Applicant's Letter of Appointment provided that the salary and conditions of employment were in accordance with the Queensland Local Government Industry (Stream A) Award – State 2017 ('the Award') and the Mornington Shire Council's Certified Agreement. [22] The Letter of Appointment states that the Applicant's salary is in excess of the relevant base rate prescribed by the Award in compensation for all entitlements otherwise payable under the Award. [23] Section 371 of the IR Act provides the following - … (3) Subsection (4) applies if— (a) an employer employs an employee to perform work for a rate agreed between the employer and the employee; and (b) either— (i) the rate for the work is not fixed by a relevant industrial instrument or permit; or (ii) the fixed rate is less than the agreed rate. (4) The employer must pay the employee the agreed rate without deduction, other than a deduction authorised by this division or the employee's consent. … [24] The term 'fixed rate' is defined in s 370 as follows - … fixed rate means the rate applicable under— (a) for an apprentice or trainee—section 135; or (b) for an employee under an industrial instrument or permit—the industrial instrument or permit; or -- 6 of 10 -- 7 (c) for an employee who is entitled to the Queensland minimum wage and in relation to whom paragraph (a) or (b) does not apply—a general ruling for the Queensland minimum wage. … [25] The Letter of Appointment evidences an agreement that the Respondent employed the Applicant to perform work for a rate agreed between the parties1 and the fixed rate is less than the agreed rate.2 Accordingly, as outlined in s 371(3) of the IR Act, s 371(4) applies. [26] Section 371(4) provides that an employer must pay the employee the agreed rate without deduction other than a deduction authorised by Division 3 of the IR Act or with the employee's consent. [27] Section 38 outlines the Respondent's obligation to pay the Applicant for the annual leave upon his termination of employment. Failure to make payment of the accrued annual leave is a contravention of s 38. [28] The Respondent submits that the deduction was authorised on the basis of the Applicant's consent. The Respondent contends that this consent was obtained via the Applicant's signature on the Letter of Appointment. [29] The Letter of Appointment contains 8 pages of terms and conditions and is signed by the CEO of the Mornington Shire Council. At the end of the final page the Applicant has signed and dated under the following statement – Acceptance of Position Please indicate your acceptance of this position Manager Infrastructure Delivery and the above conditions by signing this letter and the attached position description and enclose certified copies of all relevant qualifications, certificates or licences with respect to this position. Please return these documents and the New Employee Forms before commencement. I hereby accept the position and the terms and conditions as offered above. Mark Bateup Signed: --------------------------- Date: 06/09/2023 [30] The Letter of Appointment included the following clause - 10. Relocation and Repatriation … 1 Industrial Relations Act 2017 (Qld) ('the IR Act'), s 371(3)(a). 2 IR Act (n 1), s 371(3)(b)(ii). -- 7 of 10 -- 8 Where the officer ceases their employment voluntarily before 12 months service is completed, the officer will be required to pay back to MSC, a percentage of the relocation expenses paid by Council in accordance with Council's Relocation and Repatriation Policy. [31] The Respondent relies upon the above clause for its claim that the Applicant is required to pay back a percentage of the relocation expenses paid by the Respondent on the basis that the Applicant voluntarily ceased his employment prior to the completion of 12 months service. [32] The Letter of Appointment also included the following clause - 18. Deductions During the course of your employment and on termination, you authorise and permit Council to deduct from your remuneration or accrued entitlements, the value of any debts (including but not limited to leave taken in advance and unreturned goods) you have incurred to the Council. [33] The Respondent relies upon the above clause for its contention that it was entitled to deduct the amount to be repaid for relocation expenses from the Applicant's final pay. [34] The Respondent contends that the signed Letter of Appointment containing the above clauses is evidence that - a) the Applicant incurred a debt to the Respondent in accordance with cl 10 of the Letter of Appointment; and b) the Applicant consented to the deduction of the relocation expenses in accordance with cl 18 of the Letter of Appointment. [35] The Respondent's Relocation and Repatriation Policy ('the Policy') outlines the percentage of relocation expenses to be repaid in accordance with the length of time served by the employee. [36] The Policy provides that 100% of the relocation expense is to be repaid by the employee in circumstances where the employee resigns within their probationary period, as was the case with the Applicant. [37] The Applicant submits that the Respondent breached a number of conditions agreed between the parties relating to accommodation and internet access prior to his acceptance of the position. [38] The central question in this matter is whether the Applicant consented to the Respondent's deduction of the relocation expenses from his final pay in accordance with the requirements of s 371 of the IR Act. [39] The parties have made no submissions as to whether the specific requirements of s 371(4) or s 371(5) have been met in this matter. -- 8 of 10 -- 9 [40] As outlined at paragraph [29], the Applicant's signature indicates his acceptance of the position, the terms and conditions, and confirmation that he will enclose certified copies of his relevant qualifications, certificates, and licences with respect to his position. [41] In my view, the Applicant's signature on the Letter of Appointment is insufficient evidence that the Applicant consented to the deduction or 'withholding' of an amount to reimburse the Respondent for relocation expenses. [42] I am not persuaded that the act of signing the Letter of Appointment alone demonstrates genuine consent for the deduction. A blanket acceptance of the 'terms and conditions' of employment of this type does not reflect consent for the specific deduction that ultimately occurred. [43] Section 14A(1) of the Acts Interpretation Act 1954 (Qld) provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. One of the purposes of the IR Act as outlined in s 3 is to provide a framework for cooperative industrial relations that is 'fair and balanced'. Section 4(f) of the IR Act provides that the purpose is to be achieved by "providing for a guaranteed safety net of fair, relevant and enforceable minimum employment conditions through the Queensland Employment Standards". These standards are outlined in Part 3, Division 5 of the Act. [44] In circumstances where the amount deducted from the Applicant's final pay included annual leave entitlements related to minimum conditions contained in the Queensland Employment Standards, I am not of the view that that such a deduction is lawful. It cannot be the case that an employer can satisfy an alleged debt owed by an employee by making a unilateral deduction of entitlements accrued in accordance with the legislative minimum employment standards. Such an interpretation is inconsistent with the purposes of the IR Act. [45] The requirement of an employee's consent to a deduction avoids the possibility of arbitrary or unfair deductions arising from issues that may be contested e.g. repayment for damaged equipment, cost of training, etc. The cost of contesting such a deduction would generally be prohibitive given the imbalance of power between the employer and employee, and accordingly specific consent is required under s 371(5) before such a deduction can be made. [46] Section 371(5) of the IR Act is outlined as follows – (5) If an employee's consent authorising a deduction to be made from wages is not written, before making the deduction, the employer must give the employee written acknowledgement of the consent. [47] In the absence of the Applicant's written consent authorising the specific deduction from his wages relating to the relocation expenses, it was incumbent upon the Respondent to ensure that written acknowledgement of consent was given in accordance with s 371(5) of the IR Act. There is no evidence that this occurred. -- 9 of 10 -- 10 [48] The Respondent is of the view that a debt is owed by the Applicant in relation to the relocation expense outlined in cl 10 of the Letter of Appointment. The Applicant contends that his agreement to the terms of the Letter of Appointment was predicated on the undertakings given as to the standard of housing and internet access to be provided. In these circumstances it is open to the Respondent to seek an order for payment in the appropriate jurisdiction and potentially for the Applicant to raise a counterclaim. It was not, however, open to the Respondent to simply deduct the amount from the Applicant's final pay in the absence of specific written consent. [49] In addition, annual leave entitlements must be paid upon termination in accordance with s 38 of the IR Act. [50] In circumstances where I have found that the Applicant did not provide consent for the deduction, the Respondent was not lawfully entitled to withhold the cost of the relocation expense from the Applicant's final pay. Order [51] I make the following orders: 1. The Application is granted. 2. Within 21 days of the date of this decision, the Respondent to pay the Applicant the full amount of unpaid wages and annual leave entitlements accrued as at the date of termination without deduction, subject to the appropriate taxation. -- 10 of 10 --