Cox for the Department of Industrial Relations v Consumable Products Pty Ltd [2003] QIRC 30 (2003) 172 QGIG 1368

1368 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 March, 2003 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – power to recover unpaid wages and superannuation contributions etc. David Cox for the Department of Industrial Relations AND Consumable Products Pty Ltd (No. W182 of 2002) DEPUTY PRESIDENT SWAN 18 March 2003 Application for alleged unpaid wages and superannuation contributions – Jurisdictional challenge raised pursuant to s. 694 of the Queensland Industrial Relations Act 1999 – Whether applicant had a “workplace” in Queensland – Definition of Commercial Traveller considered pursuant to Commercial Travellers Award – State – “Workplace” definition considered pursuant to the Workplace Health &Safety Act 1995 – Applicant’s evidence accepted as truthful – Application granted in full. DECISION Matter W182 of 2002 is an application made by David Cox (Industrial Inspector with the Department of Industrial Relations, Southport) on behalf of Mr Wayne Davidson for the payment of alleged unpaid wages and superannuation contributions by Consumable Products Pty Ltd (the respondent). Mr Mangraviti, Chartered Accountant for the respondent company, represented Consumable Products Pty Ltd. The amount claimed is $8,811.11. That payment represents payment for certain hours worked, annual leave considerations, payment of notice in lieu of termination of employment and superannuation payments. -- 1 of 3 -- 28 March, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1369 In his Affadivit, Mr Mangraviti raised a jurisdictional challenge stating that the application did not comply with s. 694 of the Industrial Relations Act 1999 (the Act). That section states as follows: “694 Employees working in and outside State (1) This section applies if an employer – (a) has a workplace, or is present, in Queensland; and (b) engages in Queensland an employee whose employment is, with the employer’s consent, performed partly in Queensland and partly in another State. (2) An industrial instrument that binds the employer and employee for the employment performed in Queensland also binds them for the employment performed in the other State.”. Mr Mangraviti claimed that the respondent company did not have a “workplace” in Queensland. The respondent did not request that these issues be dealt with in isolation from the remaining issues in contention between the parties. In truth, it would be almost impossible to dissect the case into separate compartments. Consequently, all matters were addressed during the short hearing. The debate as to whether there was a jurisdictional bar which prohibited the application from being heard was enmeshed in the total debate. The applicant’s case is as follows: Mr Davidson was employed by Consumable Products Pty Ltd as a commercial traveller under the Commercial Travellers Award – State (the Award) from 6 February 2000 to 2 November 2001. Mr Davidson resides at Cedar Grove, Queensland. Mr Davidson had worked within the sales area for approximately 20 years. The respondent carried on the business of selling automotive parts to retail customers. The business itself operated out of Greenacre, New South Wales. Mr Davidson, however, operated the Queensland aspect of the business from his home address in Queensland. There was an oral contract between the parties and a salary of $38,000 was paid to the applicant. The applicant’s duties required him to present the respondent’s products to retail customers, establish new accounts and liaise with customers. The applicant retained a small stockpile of fast moving products which were delivered personally by him when sold. The applicant reported daily via telephone to the Sydney office. He was based at his Queensland address but travelled wherever necessary, which was primarily South-East Queensland. The hours worked were Monday to Friday from 8.00 a.m. to 6.00 p.m., with occasional weekend work at trade fairs. Records of hours worked were not kept by either the applicant or the respondent. The applicant stated that he did not receive pay advice statements as to how his pay was formulated. On two occasions the applicant states that he received annual leave – during August 2000 and July 2001. Normal pay was received during these breaks. Mr Davidson’s employment was terminated on 2 November 2001 and at that time he was not paid any monies for the balance of leave or pro rata annual leave. No contribution towards superannuation payments were made on the applicant’s behalf despite the applicant having filled out a form for the MLC Masterkey Superannuation Fund. Mr Davidson retained possession of two (2) automotive parts, a bank deposit book and a tax invoice book, the property of the respondent, upon being terminated. He claims he did this because he wanted some surety that the respondent would pay what he believed was owed to him. Mr Cox, for the Department of Industrial Relations, gave evidence as follows: Mr Davidson was employed by the respondent to sell its goods in Queensland and the employee’s base was his private residence in Queensland. Mr Davidson was employed pursuant to the aforementioned Award. The Workplace Health & Safety Act 1995 at s. 9(1)A defines a workplace as follows: “9.(1)A A “workplace” is any place where work is, is to be, or is likely to be, performed by a worker, self-employed person or employer. Examples of subsection (1) – 1. A construction workplace. 2. A vessel used for teaching members of the public to scuba dive. 3. A vehicle supplied by an employer for use by a worker in the performance of work. (1) A place may be a “workplace” even though it does not have to be registered or notified as a workplace under a regulation. …”. The workplace does not have to be registered if employing less than three (3) persons. From Mr Cox’s calculations, in accordance with the Award, Mr Davidson was owed the $8,811.11 claimed. For the respondent, Mr Mangraviti’s evidence was as follows: Mr Mangraviti was present when Mr Davidson was appointed to the position of “Commissioned Sales Representative” – a title which later changed (at Mr Davidson’s insistence) to “Queensland Regional Manager”. Mr Davidson was the chairman of the scrutiny advisory panel for CAMS (Confederation of Australian Motor Sports) and held Driver Management Courses for those wanting to secure a racing driver’s licence etc. On many occasions, it is alleged that Mr Davidson held those courses on a Thursday or Friday, thereby cutting into the work pattern he claimed to have followed with the respondent. It was alleged that Mr Davidson received a weekly retainer and was not required to work any particular number of hours during the course of one week. -- 2 of 3 -- 1370 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 March, 2003 As a consequence of Mr Davidson’s poor performance, his services were terminated. Mr Mangraviti stated that the respondent’s business was always conducted from Greenacre in New South Wales whereby the applicant’s business was his own and was carried out at his home address in Queensland. It was further claimed that since the contract between the parties was executed in New South Wales, it followed that the “State of Queensland has no jurisdiction regarding the above contract”. A claim was made against the applicant by the respondent for an amount of some $5,000 representing in effect costs incurred by the respondent in defending this application. In analysing this evidence, I have accepted the evidence of Mr Cox, representing the applicant, on the following points. The Award covering the type of work performed by the applicant is the Award as cited by the applicant. In that Award, the definition of a “Commercial Traveller” is as follows: “Definitions 4. For the purposes of this Award the following definitions shall apply – “Commercial Traveller” shall mean a person employed outside the Employer’s place of business by a wholesale or partly wholesale warehouseman, manufacturer, manufacturer’s agent or indent agent in the State of Queensland, principally or substantially for the purpose of soliciting wholesale business but shall not include van salesman or bona fide mercantile brokers. …”. The “workplace” referred to in the Workplace Health & Safety Act 1995 (previously cited) is the type of workplace within which the applicant worked. The Act contemplates a situation whereby the type of work in question may be performed by virtue of s. 694. In terms of the earlier cited Award, the applicant’s work practices fit squarely within the definition of a “Commercial Traveller” under that Award. There was nothing in the submissions and evidence of Mr Mangraviti which seriously challenged the fact that Mr Davidson performed work in the manner described above. I found Mr Davidson’s evidence to be truthful. The entitlements of the Award must be paid to the applicant. The applicant’s claim is granted in all aspects. The respondent is to pay to Mr Davidson the amount of $8,811.11 within 22 days from the release of this decision. Order accordingly, D. A. SWAN, Deputy President. Hearing Details 2003 10 January 17 February Appearances: Mr D. Cox of the Department of Industrial Relations, on behalf of the Applicant. Mr J. Mangraviti on behalf of Consumable Products Pty Ltd. Released: 18 March 2003 -- 3 of 3 --