Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees v Isa Freight Express [2001] QIRC 166 (2001) 168 QGIG 175

19 October, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 175 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – unpaid wages Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees AND Isa Freight Express (No. W157 of 2001) COMMISSIONER ASBURY 9 October 2001 Underpayment of wages – Unauthorised deduction made from wages – Respondent maintains that deduction represents cost of obtaining ticket – Use of ticket in performance of work for respondent – Wages to be paid without deduction – Respondent concedes breach of s. 391 – Respondent not entitled to refuse to comply with Commission order on the basis of pending small claims application – Respondent ordered to pay amount of underpayment to applicant within seven days. DECISION AND ORDER This is an application by the Federated Engine Drivers’ and Firemens’ Association of Australasia, Queensland Branch, Union of Employees (FEDFA), for an order under s. 278 of the Industrial Relations Act 1999 (the Act). The order sought is that Parkside Caravans Pty Ltd ACN 009 881 207, trading as Isa Freight Express (the respondent), pay an amount of $160.00, to Mr Fox, who is a member of the FEDFA. It is contended by the FEDFA that Mr Anthony Kuhn, a Director of Parkside Caravans Pty Ltd, deducted the amount of $160.00 from wages due and payable to Mr Fox, on 16 December 1999, resulting in an underpayment of those wages. It is further contended that the deduction was made without the authorisation by Mr Fox, and is in breach of s. 391(3) of the Act, which provides as follows:– “If – (a) an employer employs an employee to perform work for a rate agreed between the employer and the employee; and (b) either – (i) the rate for the work is not fixed by a relevant industrial instrument or permit; or (ii) the rate fixed is less that the agreed rate; the employer must pay the employee the agreed rate without deduction, other than a deduction authorised by this division or the employee’s written consent.”. It is also contended by the FEDFA that a recommendation has been issued in relation to this matter by another member of the Commission, and that the respondent has failed to comply with that recommendation. Mr Kuhn who represented the respondent at the hearing into this application, persisted with the view that he was engaged in a “discussion”, despite being advised on numerous occasions that the proceedings were in fact a formal hearing in relation to Mr Fox’s claim. Mr Kuhn, showing what can only be described as total disregard for the processes of the Commission, despite being warned of the implications of his conduct, made a number of concessions. Firstly, Mr Kuhn conceded that the amount of $160.00 had been deducted from Mr Fox’s wages, and that Mr Fox had not given his written consent for the deduction to be made. Mr Kuhn’s defence was essentially that Mr Fox had obtained a “ticket” to operate a side loader, and that the respondent had paid the cost associated with Mr Fox obtaining that ticket. Mr Kuhn also conceded that the ticket had been used by Mr Fox in the course of his employment with the respondent (refer Transcript p. 4) but maintained that Mr Fox had the benefit of the ticket after ceasing employment with the respondent (refer Transcript p. 5). Mr Kuhn also said:– “…We realise and we admit that in hindsight we’ve found out since its coming up that it is illegal to deduct out of someone’s wage without it being signed for and so on. Its been a sort of a done thing in industry, private industry, for a long time. Okay, its illegal, we found out that and we admit to it…”. When asked what he proposed to do about the application, Mr Kuhn said “nothing”. Mr Kuhn went on to advise the Commission that he would only refund the $160.00 to Mr Fox, if Mr Fox had the ticket cancelled. Alternatively, Mr Kuhn advised the Commission that if an order for the payment of -- 1 of 2 -- 176 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 October, 2001 $160.00 was made against the respondent, then he would seek to recover that amount from the applicant by way of a small claims proceeding in the Magistrates Court. While Mr Kuhn has the right to take any matter to the Magistrates Court, he does not have the right to refuse to comply with an order of this Commission pending any proceedings in the Magistrates Court. In my view, the following considerations would also be relevant to the determination of any such claim by a Magistrate:– • both State and Federal Awards typically contain provisions to the effect that employers are required to pay all costs associated with training, where the outcome of the training is a qualification that is used or required to be used in the workplace; and • under such Award provisions, the employer would be required to pay for lost ordinary time associated with attendance at training and other costs associated with the training, either up front or as a reimbursement to the employee for expenditure, subject to the successful completion of the training. I would be most surprised if an amount could be ordered to be paid by Mr Fox to the respondent as part of a small claims proceeding, which he was not and could not be obligated to pay in the first place, and which had been deducted from his wages in clear breach of the Industrial Relations Act 1999. Of greater concern, is a further voluntary admission from Mr Kuhn to the effect that it had been a long established practice for the respondent to make deductions from the wages of employees, in similar circumstances to those surrounding the deduction from Mr Fox’s wages. It is clear from this admission that breaches of s. 391 of the Act (and earlier identical versions of those provisions) have been an ongoing feature of the respondent’s operations. Also of concern is the stated intention of Mr Kuhn to continue this practice on the basis of the contention that he has now obtained written consent from remaining employees to make such deductions. If the Award applicable to those employees requires that costs associated with required training must be paid by the employer, or reimbursed to the employee upon successful completion of training by the employee, then it is arguable that a signed authority to deduct costs associated with training from an employee’s wages, is invalid. As there is no argument before me on this point, I do not intend to determine it. In light of the admissions of the respondent about past conduct, and the stated intention to continue such conduct, I intend to refer this matter to the Department of Industrial Relations, for consideration about whether further action should be taken. The Commission orders as follows:– 1. That Parkside Caravans Pty Ltd (ACN 009 881 207) trading as Isa Freight Express BN 5105299 pay the amount of one hundred and sixty dollars ($160.00) to Mr Robert Fox in respect of an underpayment of wages which occurred as a result of an unauthorised deduction on 16 December 1999 from wages due and payable to Mr Fox. 2. That the amount set out in paragraph 1 of this order be paid by cheque, to the CFMEU Wages Trust Fund, within seven (7) days of the date of release of this Decision and Order. I.C. ASBURY, Commissioner. Released: 10 October 2001 Appearances:– Mr J. Coogan of the Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees. Mr A. Kuhn for Isa Freight Express, the Respondent -- 2 of 2 --