Australian Security Company Pty Ltd v David Hart & Ors [2004] ICQ 23 (2004) 175 QGIG 1371

1371 Vol. 175 FRIDAY, 30 APRIL, 2004 No. 17 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 248 – application for declaratory relief Australian Security Company Pty Ltd AND David Hart and Others (No. C11 of 2004) PRESIDENT HALL 14 April 2004 DECISION This matter arises out of the service of certain attachment notices under Chapter 11, Part 2, Division 2 of the Industrial Relations Act 1999 (the Act). The substantial issue is whether the orders contemplated by ss. 382(3)(a) and 383(2)(a) may be made in or consequentially upon proceedings under s. 666. If such orders may not be made in or consequentially upon s. 666 proceedings, a further issue arises as to the extent (if any) of the Court’s power to issue declaratory orders and orders consequential upon the grant of declaratory relief. Chapter 11, Part 2, Division 2 of the Act brings into existence a scheme whereby an amount payable by a prime contractor to the employer of an employee may be attached in the hands of a prime contractor for the benefit of the employee. By section 381 of the Act: “An employee, whose wages, remained unpaid for 24 hours after they are payable and have been demanded by the employee, may serve the contractor with an attachment notice in the approved form.”. -- 1 of 2 -- 1372 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 April, 2004 If such an attachment notice is served on a prime contractor, the prime contractor must retain from the amounts payable, or to become payable, by the prime contactor to the employer for the contracted work, an amount sufficient to satisfy the claim for wages specified in the notice and all further claims for wages specified in notices of attachment served on the prime contractor within 7 days after the service of the first notice, s. 382(1)(2). The scheme by which the employee may gain access to the frozen money commences with s. 382(3)(a). That provision contemplates that the employee may access the money if the Magistrate, which means an Industrial Magistrate, so orders. The order contemplated by s. 382(3)(a) is plainly the order more fully described in 383. Section 383 provides as follows: “ 383 Orders for payment by prime contractor or clerk of the court (1) Subsection (2) applies if an employee who served an attachment notice on a prime contractor obtains from a magistrate against the employer for the claim for wages. (2) The magistrate may order the judgement be satisfied, wholly or partly, by payment of a stated amount – (a) from mounts paid to the clerk of the Magistrates Court under section 382(4); or (b) if no amount was paid to the clerk under section 382(4) or the amount paid was not enough to cover the amount ordered to be paid by the magistrate – by the prime contractor. (3) In deciding the amount that should be ordered to be paid for an employee’s claim, the magistrate must take into account the existence of claims for wages of other employees of the employer of which the magistrate has knowledge. (4) Subject to any appeal against the magistrate’s decision, the clerk or prime contractor must pay the amount stated in the relevant order to the employee from the amounts – (a) paid to the clerk under section 382(4); or (b) attached and kept in the hands of the prime contractor. (5) Payment must be made within 21 days after a copy of the order is served on the clerk or prime contractor. (6) If an appeal is started and notice of it is served, the clerk or prime contractor must continue to keep the amounts which payment is to be made until the appeal is finally decided or discontinued. (7) The prime contractor is not liable to a greater extent than the amount actually payable by the prime contractor to the employer when – (a) the orders is served; or (b) payment is made under the order; whichever is the greater.”. The sections of the Act which permit an employee to obtain judgement from an Industrial Magistrate against an employer for wages are ss. 399 and 666. As a matter of first impression one would have thought that the scheme was to permit an employee who recovers a judgment under either of those sections to claim an order under s. 383(2)(b) gaining access to the frozen moneys. So construed, the scheme is comparable to that established by Part II of The Wages Act 1918. It may be noticed that that scheme entered the Industrial Relations Act 1990, in consequence of a recommendation of the Committee of Inquiry, chaired by Mr R.R. Hanger QC into the Industrial Conciliation Arbitration Act 1961 that the scheme contained in The Wages Act 1918 should be folded into the principal contemporary industrial statute. There was no suggestion about modification of the scheme. (The scheme flowed through the Workplace Relations Act 1997 and into the current Act). The applicant’s contention is that Chapter 11, Part 2, Division 2 contemplates discrete proceedings before an Industrial Magistrate, commenced by an application under r. 92 of the Industrial Relations (Tribunal) Rules 2000, before an Industrial Magistrate. Reliance is placed upon the use of the phrase “claim for wages” at s. 382(2) and s. 383(1). With respect, it seems to me that reference at s. 382(2) and s. 383(1) is no more than a reference to the amount said to be payable for wages “specified in the (attachment) notice”. So much is made clear by the reference in s. 382(3) to “the amount claimed as wages and specified in the notices”. Such a neutral meaning of “claim for wages” sits comfortably within the definition of “claim for wages” in schedule 5. Nowhere, in any of the provisions referred to, is there any indication of how, where and against whom any such discrete claim should be litigated. Reliance is then placed upon s. 292(1)(b)(v) which vests an Industrial Magistrate with jurisdiction to hear and decide proceedings about claims under Chapter 11, Part 2, Division 2. Given that the reference is to “claims” rather than to “claims for wages”, I rather suspect that the purpose of the provision is to vest the jurisdiction exercised by an Industrial Magistrate in dealing with proceedings against the prime contractor under s. 385. One might have thought than any investiture of jurisdiction to entertain a request for an order under s. 383 was perfected by 292(1)(a). But even if s. 292(1)(b)(v) is read broadly to confer the jurisdiction exercised under s. 383, that is an insufficient basis for concluding that the judgement referred to at s. 383 may not be pursued in proceedings under ss. 399 and 666 and must be pursued in discrete (unidentified) proceedings. In my view the orders contemplated by ss. 382(3)(a) and 383(2)(a) may be made in or consequently upon proceedings under s. 666. In those circumstances the (difficult) issues about the declaratory relief need not be addressed. In fairness to counsel for the applicant, I should say that I have considerable sympathy for the submission that there is the potential for abuse in Chapter 11, Part 2, Division 2. It is not immediately apparent that an employer has any redress where an employee freezes money in the hands of the prime contractor but declines to initiate proceedings to access the money. That, however, is not this case. I dismiss the application. I reserve all questions about costs. Dated 14 April 2004. D.R. HALL, President. Released: 14 April 2004 Appearances: Mr A.A.J. Horneman-Wren instructed by Livingstons Australia for the applicant. Mr R.C. Kenzie QC and with him Mr R.E. Reed instructed by Hall Payne Lawyer’s for the respondent. -- 2 of 2 --