Feldman v Ocean Ford Pty Ltd [2003] QIRC 149 (2003) 173 QGIG 1429

29 August, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1429 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for orders Brian Neville Feldman AND Ocean Ford Pty Ltd (No. W78 of 2003) COMMISSIONER EDWARDS 14 August 2003 Application for orders – Unpaid wages – Agreed facts – Case stated to court. DECISION By application filed on 7 July 2003, Brian Neville Feldman of the Department of Industrial Relations, Maryborough, a duly appointed Inspector under the Industrial Relations Act 1999 (the Act), applied for an order for payment of unpaid wages under s. 278 of the said Act and that Ocean Ford Pty Ltd, the respondent, pay to Brendan Paul Phillips, the total sum of $2,219.78. The Commission as constituted chaired a conference on 10 July 2003 at which the parties requested that the Commission invoke s. 282 of the Act and prepare a Case Stated to the Industrial Court. On 29 July 2003, the Vice President allocated the matter for hearing. The Commission listed the matter for mention at 9.15 a.m. on 11 August 2003. -- 1 of 2 -- 1430 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 August, 2003 The parties have prepared agreed facts which are as follows: (a) Ocean Ford Pty Ltd (the respondent) is an employer within the meaning of the Industrial Relations Act 1999 and it employed Brendan Paul Phillips (the employee) at 6 Lionel Donovan Drive, Noosaville as a probationary motor vehicle salesperson who regularly did the work of selling new and used motor vehicles; (b) The employee was employed under the Motor Vehicle Salesperson’s Award – Southern Division (the Award). The Award applicable at the material time did not contain an hours of work or overtime clause; (c) The employee was employed from 25 July 2002 to 18 October 2002 as a full-time employee; (d) The employee regularly worked in excess of 40 hours per week. On the occasions when the employee worked in excess of 40 hours per week the employee was not paid overtime; (e) The employee claims that he is owed a gross amount of $2,219.78 as unpaid overtime. The employer disputes that the employee has an entitlement to payment of overtime; (f) At the hearing of this matter the parties intend to refer to the history of the relevant legislation and to the history of the Award (first made by the Board of Trade and Arbitration on 7 October 1927).; In accordance with s. 282 of the Act and in view of the abovementioned facts, the Commission submits to the President for the Court’s opinion the following question: Is the Motor Vehicle Salesperson’s Award – Southern Division an industrial instrument which fits within the category of an industrial instrument that “provides otherwise” for the purposes of Subsection 9(7) of the Industrial Relations Act 1999? K.L. EDWARDS, Commissioner. Appearances: Mr B.N. Feldman, of the Department of Industrial Relations, on behalf of the applicant. Mr T. Kowalski, of the Motor Trades Association of Queensland Industrial Organisation of Employers, on behalf of the respondent. -- 2 of 2 --