Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Distinctive Personnel Pty Ltd [2002] QIRC 159 (2002) 171 QGIG 264

264 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 November, 2002 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for unpaid wages Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Distinctive Personnel Pty Ltd (No. W130 of 2002) COMMISSIONER THOMPSON 18 October 2002 Unpaid wages – No appearance by respondent – Ex parte – Arbitrated matter – Witness evidence – Application granted – Payment of unpaid wages ordered. DECISION -- 1 of 2 -- 1 November, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 265 Background An application was filed by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) (Union) on 22 August 2002 on behalf of Ms Amanda Seiboth (applicant) under s. 278 of the Industrial Relations Act 1999 (Act) seeking to recover an amount of $1,103.30 allegedly underpaid by Distinctive Personnel Pty Ltd (respondent). A preliminary hearing to determine programming for the application was held on 16 September 2002, at which the respondent failed to enter an appearance. On the same day, 16 September 2002, further directions orders were issued in respect of the application, which was the catalyst for a Mr Glen Westcott (who identified himself as a representative of the respondent) to contact my Associate on 19 September 2002 and advise that, as it was the intent to deregister the company, therefore there would be no attendance at the hearing proper. At the proceedings, which commenced on 17 October 2002, there was no appearance entered on behalf of the respondent, with the Commission determining, in accordance with s. 62 of the Industrial Relations (Tribunals) Rules 2000, the proceedings would go ahead in the respondent’s absence: “Hearing in respondent’s absence 62. A commissioner may hear and decide an application under section 278 of the Act in the respondent’s absence, if the commission is satisfied– (a) the application contained a warning that the application may be dealt with in the respondent’s absence; and (b) the applicant has proved service of the application on the respondent; and (c) the application contains sufficient particulars relied on in support of the application.”. The Commission was satisfied that each of the criteria at clauses (a), (b) and (c) had been met so as to enable the matter to proceed. Applicant Evidence, on behalf of the applicant, was given by Mr Colin Struthers and Ms Seiboth. Mr Struthers, an officer of the Union since 1989, gave evidence that, on receipt of a complaint lodged with the Union by Ms Seiboth in mid 2000, he initiated, and carried out, an investigation, which included a visit to the premises of Mr Westcott, where he viewed the time and wage records pertaining to the employment of Ms Seiboth. In discussions he had with Mr Westcott, he was informed that the respondent had performed work on a sub contract basis for O’Brien Catering and that Ms Seiboth had been employed on that work. The meeting between Mr Westcott and himself failed to provide an outcome, with Mr Westcott indicating that he was not prepared to make any form of payment to meet or settle the claim. Having then perused the records of Ms Seiboth (which, he stated, were diligently kept), he made a comparison with those provided by the respondent, and it was his conclusion that underpayment of $1,103.30 had occurred in respect of Ms Seiboth’s employment with the respondent. The evidence of Ms Seiboth was that her employment with the respondent had been for the period between 4 March 2000, until September 2000, and that the majority of her work had been at the “Gabba sports stadium”. At paragraph 7 of her affidavit of evidence, details were provided of the days and hours worked for the entirety of the employment. Ms Seiboth alleged to have had regular problems with her pay and, on numerous occasions, did not receive payment at all for time worked. Final Submissions Mr Russell Robinson, for the applicant, submitted that the evidence put forward, supportive of the application, identified, in clear terms, that an underpayment had occurred and that the amount claimed of $1,103.30 was the appropriate payment that should be subject to an order of the Commission. Conclusion In determining this matter, the Commission was not given an opportunity to consider the position of the respondent as a result of their failure to appear, and, as such, could only reach a finding based upon the evidence and submissions of the applicant. The evidence of Mr Struthers, an experienced union officer, convinced the Commission that the process put into place to investigate the complaint lodged by Ms Seiboth, and the method of the calculation of the underpayment, on the balance of probabilities, identified the correct amount of money that was outstanding in respect of work performed by Ms Seiboth. The importance of Ms Seiboth’s evidence to the Commission centred around the records kept by her of each and every day worked during the period of engagement, and as these were not subject, for obvious reasons, to challenge, are therefore accepted by the Commission. On the basis of the evidence and submissions before the Commission, I find that an underpayment of wages, in respect of Ms Seiboth’s employment with the respondent, did in fact occur, and order that the respondent pay to Ms Seiboth the amount of $1,103.30, within twenty-two (22) days of the release of this decision. I order accordingly. J.M. THOMPSON, Commissioner. Hearing Details 2002 9 and 16 September 17 October Appearances: Mr R. Robinson of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees for the applicant. Released: 18 October 2002 -- 2 of 2 --