Brown v Aberwood Investments Pty Ltd formerly t/a Matthias Earthmoving (in liquidation) [2002] QIRC 165 (2002) 171 QGIG 392

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 November, 2002 392 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – power to recover unpaid wages and superannuation contribution etc. William Brown AND Aberwood Investments Pty Ltd formerly t/a Matthias Earthmoving (in liquidation) (No. W45 of 2002) VICE PRESIDENT LINNANE 30 October 2002 Application seeking an order for payment of unpaid wages – Employer in liquidation – Liquidators had no objection to claim being pursued – No order of the Court obtained pursuant to s. 471B of the Corporations Act 2001 – Notice of Attachment served prior to liquidation – Claim seeks the release of monies held pursuant to Notice of Attachment – Commission unable to order payment of monies held under a Notice of Attachment – Magistrates have the jurisdiction under s. 381(3) of the Act – Application adjourned until leave of the Court obtained – Industrial Relations Act 1999 s. 278, s. 381, s. 382 – Workplace Relations Act 1997 s. 410 – Corporations Act 2001 s. 471B DECISION [1] This is an application by The Electrical Trades Union of Employees of Australia, Queensland Branch (ETU) on behalf of its member William Brown pursuant to s. 278 of the Industrial Relations Act 1999. The application seeks an order for payment of unpaid wages in the amount of $20,000 against Aberwood Investments Pty. Ltd. trading as Matthias Earthmoving (in liquidation), the former employer of Mr Brown. The claim relates to the period 2 April 1998 to 2 December 1998. [2] Although the underpayment of wages is said to be $24,435.96 the ETU has waived its right to claim the additional $4,435.96 as the claim seeks the statutory maximum found in s. 278(2) of the Act i.e. $20,000. [3] Michael Griffin and Ivor Worrell of Worrells Solvency & Forensic Accountants were appointed as Liquidators of Aberwood Investments Pty Ltd pursuant to an Order of the Supreme Court of Queensland on 7 June 2002. By correspondence dated 17 July 2002 Mr Griffin advised the ETU that he had no objection to the ETU pursuing the claim on behalf of Mr Brown. The Liquidators did not appear at the hearing of this application. No objection was taken to the matter proceeding. [4] Whilst the Liquidators have indicated they have no objection to the claim being pursued in this Commission, there is the matter of s. 471B of the Corporations Act 2001 to consider. The issue was not raised at the hearing. That section provides as follows: “471B Stay of proceedings and suspension of enforcement process While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with: (a) a proceeding in a court against the company or in relation to property of the company; or (b) enforcement process in relation to such property; except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.”. [5] I adopt the reasoning of Hall C C (as he then was) in Harrington v The Goodlife Company and Friends Pty Ltd (in liquidation) 155 QGIG 1124 and that of Blades C in Bosch v Project Constructions (Aust) Pty. Ltd. (No 2) 169 QGIG 105 in finding that the matter before me is a “proceeding in a court”. Whilst those decisions related to unfair dismissal proceedings and the matter before me concerns the recovery of unpaid wages I am of the view that the effect of s. 471B means that the ETU is unable to “proceed with” its current application until the leave of the Court is obtained. -- 1 of 2 -- 15 November, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 393 [6] Given that the issue of s. 471B of the Corporations Act 2001 was not raised by either party at the hearing, I was not addressed on whether or not the service of a Notice of Attachment well prior to the Liquidators being appointed has any impact on the applicability of s. 471B of the Corporations Act 2001 to this application. [7] In circumstances where the ETU is also seeking an order for the release of monies held under a Notice of Attachment, I think it appropriate to comment somewhat on the current application. [8] It seems that on or about 16 December 1998 the ETU caused to have a Notice of Attachment issued pursuant to s. 409 of the then Workplace Relations Act 1997 directed to the Secretary, South East Queensland Electricity Corporation trading as Energex, in respect of an amount of $24,436.25 being monies due to Mr Brown in respect of wages. That fact may assist the ETU in gaining the leave required under s. 471B of the Corporations Act 2001. [9] Section 410(3) of the Workplace Relations Act 1997 required the prime contractor to retain the monies until “a magistrate orders to whom, and in what way, the amount must be paid” or, alternatively, the prime contractor, having been served with the Notice of Attachment, may have paid the monies to a clerk of the Magistrates Court under s. 410(4) of that Act. At that time the only manner of recovery of unpaid wages was by application to a Magistrate. This Commission had no jurisdiction to order recovery of unpaid wages. [10] With the enactment of the Industrial Relations Act 1999 the Commission, in s. 278, was given certain jurisdiction in respect of the recovery of unpaid wages. Under that Act the service of attachment notices is provided for in s. 381. Section 382(3) of the Industrial Relations Act 1999 continues to provide that the monies must be kept by the prime contractor until “a magistrate orders to whom, and in what way, the amount must be paid” or “the prime contractor deals with the amount under subsection (4)” i.e. the prime contractor has paid the monies to a clerk of the Magistrates Court. [11] It seems to me that had I found that Mr Brown had an entitlement to the $20,000 I would not have been able to order the release of the monies held by Energex. That being the case if the ETU obtains the necessary leave pursuant to s. 471B of the Corporations Act 2001 then the matter may be more appropriately pursued under s. 399 of the Industrial Relations Act 1999 i.e. via application to a magistrate. [12] I will, in the meantime, adjourn this application pending further advice from the ETU. If the ETU wishes to make submissions on the applicability of s. 471B of the Corporations Act 2001in the particular circumstances of the present case then the matter will be re-listed. Order Accordingly. D.M. LINNANE, Vice President. Hearing Details: 2002 19 September Appearances: Ms K. Inglis for The Electrical Trades Union of Employees of Australia, Queensland Branch. -- 2 of 2 --