Cook v C.N.R. Seafoods Pty Ltd and James [2013] QIRC 152

CITATION: Murray John Cook AND C.N.R. Seafoods Pty Ltd and C.M. James & N.A. James (EC/2012/143) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 52 – application for determination to long service leave entitlement of seasonal employment Murray John Cook AND C.N.R. Seafoods Pty Ltd and C.M. James & N.A. James (EC/2012/143) DEPUTY PRESIDENT SWAN 27 September 2013 DECISION [1] The Applicant in this matter, Mr Murray Cook, has applied to the Queensland Industrial Relations Commission for a determination to entitlement to long service leave pursuant to s. 52 of the Industrial Relations Act 1999 [the Act]. [2] Mr Cook submitted that he was an employee who was employed in seasonal employment. The Legislation [3] The relevant legislation states at s. 52 of the Act "52 Other seasonal employees The commission may decide the entitlement to long service leave of an employee - (a) who is employed in seasonal employment, but who is not employed - (i) in the sugar industry; or (ii) in or about meat works; or (b) who is employed in other periodic employment that is not defined as casual employment by the relevant industrial instrument.". Applicant's submissions on Background to the Application [4] Mr Cook worked for C.N.R. Seafoods Pty Ltd and C.M James & N.A. James [the employer] from 26 November 2005 until 4 February 2011. Prior to that the Applicant was employed by C.N.R. Seafoods Pty Ltd and Norman A & Rose E & Colin M James from 1 March 2000 until 25 November 2005. The current owners agreed that Mr Cook was employed for 16 to 17 years by other employers which always appeared to have included a member of the James family [T2-7. T4-4]. [5] He claims to have been employed on a full time basis as a skipper/master of the above named companies on their prawn trawler "Shell-Lee N". [6] While the season might last 7 to 8 months of the year, the Applicant says that, although he was not paid during his break, he still undertook duties for the employer during the off season. [7] Mr James, the employer, stated that there has always been a traditional break during the eight month period of work of approximately four to six weeks for the purpose of allowing the prawns to breed. During that period, Mr James said that the Applicant did not work and was not paid for that period. The Applicant says that he always worked for two weeks before the vessel went out to sea and after the vessel returned. He was required to clean the vessel, stow things away and generally keep the vessel "shipshape". [8] It is claimed that the employer made contributions to the Australian Taxation Office on his behalf. The Appellant said that these payments were made on a weekly basis spread over 52 weeks of the year. The employer also made superannuation contributions. [9] In February 2011, the Applicant's employment was terminated by the employer because the vessel upon which he worked had sunk during Cyclone Yasi. [10] There is no Queensland Common Rule Award applicable to the type of work performed by the Applicant. Employer submissions -- 1 of 3 -- 2 [11] The employer provided the following information: • Mr Cook was employed by the "employer" from 26 November 2005 to 4 February 2011. • The applicant was employed, prior to that by C.N.R. Seafoods Pty Ltd and Norman A & Rose E & Colin M James from 1 March 2000 to 25 November 2005. • As previously stated the Applicant was employed and performing the same duties for the period of time nominated with prior owners of the business and the employer accepted that he had worked on the same vessel for 16 to 17 years. There were no records available before that time. • The fishing industry operates on a seasonal basis. For the purposes of this decision the fishing vessel used was the 'Shell-Lee N". The Applicant was not employed on a full time or part time basis. • The Applicant was paid a percentage of the catch. • Normal practice in the fishing industry is for the owner of the vessel to determine the total percentage to be paid to the skipper and crew and the skipper determines the percentage to be applied to each member. • The rate paid to the Applicant took into account that the work was of a seasonal nature. • There were no set hours of work performed and the actual hours worked were not considered for the purposes of the calculation of the Applicant's remuneration as the Applicant was paid a percentage of the catch. Consequently, the Applicant's income each year differed dependant upon the catch. • Because payment was not received by the Applicant on a regular basis, the employer often paid the Applicant's personal expenses from time to time. • The season usually ran for approximately 7 to 8 months of the year with a short break in the middle of that period. During the breaks, the Applicant was not paid for time taken away from work. • Workers' Compensation payments were not made by the employer on behalf of the Applicant and the employer said it had acted on advice it received from Worker's Compensation. • The employer did not accept the Applicant's claim that he was taxed over 52 weeks per year. The employer stated that it had not paid the Applicant's tax over the whole of the 12 months of a year. What it did was use the Taxation Department's tax rate to ensure that the appropriate amount of taxation was paid when payments were made to the Applicant. Consideration of submissions and conclusion [12] This matter has taken longer than usual to determine. This was partly due to the absence of the employer's accountant on listed dates. Further, the parties had agreed to a Conference before the Commission with the view that the matter might be resolved satisfactorily. This was requested by the Commission at the time but dates for the holding of the Conference were never given. [13] There were differences between the parties on some points, but primarily those differences were largely academic. [14] The agreed points between the parties are as follows: • That the Applicant had worked as a skipper on the Shell-Lee N fishing vessel. • The period of employment with C.N.R. Seafoods Pty Ltd and Norman A & Rose E & Colin M James and prior employers. • That there was a fishing season which lasted up to 8 months of a year. • That the Applicant was paid a percentage of the catch. • That payments were not made on a regular basis. • That payments were made by the employer to the Australian Taxation Office. What was not agreed was the manner in which these payments were made but suffice it to say, payments were made. • That superannuation payments were made by the employer. • The correct employment status of the Applicant. There was no agreement as to whether he was a 'full-time', 'part time' or 'casual' employee. [15] Section 69 of the Act provides: "69 Continuity of service - transfer of calling (1) A transferred employee is a person who becomes an employee of an employer (the new employer) because of the transfer of a calling to the new employer from another employer (the former employer). … (3) The transfer of the calling is taken not to break the transferred employee’s continuity of service. (4) A period of service with the former employer (including service before the commencement of this section) is taken to be a period of service with the new employer. … .". -- 2 of 3 -- 3 [16] The Applicant's employment history is not challenged by the employer. The Applicant's prior service with former employers is deemed to have been transferred to the new employer for the purposes of continuity of service. The question of continuity of service is not challenged by the employer. [17] The classification of the type of work performed by the Applicant was not debated during the hearing, but, in my view, may logically fall within the category of a "pieceworker". In Trovas Holdings Pty Ltd v Gannon, [2005] QIC 179, President Hall of the Industrial Court of Queensland stated: "…..'piecework' is sometimes used as the equivalent of 'payment by results'. In the case of beneficial legislation, the over-riding purpose of which is to ensure that all workers receive long service leave on full pay or payment in lieu on termination, I should have thought that 'piecework rates' might have been read broadly to cover a system of payment of results.". [18] In my view the work performed by the Applicant was that of a "pieceworker". [19] The manner by which an employer calculates an employee's long service leave entitlements have been considered in the following decisions of the Commission and the Industrial Court of Queensland. [20] In "An Interpretation under Meat Export Award – State 42 QIG 1154 a period of 12 months was accepted to calculate the average earning rate for contract slaughtermen for long service leave payments. Also, in Mount Morgan Limited Award – Gold and Metalliferous Mining (1963) 54 QGIG 227, Harvey C's ruling that the worker was entitled to pro rata long service leave calculated at the rate of average earnings over the previous 12 months was upheld. [21] I have accepted that the Applicant was entitled to be paid his long service leave by the employer. The calculation of such leave is to be undertaken on the basis of average earnings over the previous 12 months. The relevant period of employment is sixteen years. [22] This payment is to be made to the Applicant within six weeks of the date of release of this decision. [23] The Application is granted. [24] I order accordingly. D. A. SWAN, Deputy President. Hearing Details: 2012 26 September 3 October 5 December 2013 18 January 27 June Released: 27 September 2013 Appearances: Mr M. Cook self representing. Mr C. James self representing. -- 3 of 3 --