Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Choice Commercial Cleaning Pty Ltd [2001] QIRC 36 (2001) 166 QGIG 333

30 March, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 333 ########################################################################################################################### 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 Choice Commercial Cleaning Pty Ltd (No. W179 and W184 of 2000) COMMISSIONER THOMPSON 19 March 2001 -- 1 of 3 -- 334 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 March, 2001 Unpaid wages – Non attendance of respondent –– Proceeded ex parte – Cleaning industry – Witness evidence – Application granted – Order by Commission DECISION These matters came before the Commission following applications, filed separately, in respect of Lee Christison (filed 27 September 2000) and Milissa Barron (filed 11 October 2000) seeking that Choice Commercial Cleaning Pty Ltd pay monies to the amount of $3,105.75 and $979.19 respectively being for unpaid wages. At a hearing on 26 October 2000, Mr R. Robinson from the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) requested that applications W179 (Christison) and W184 (Barron) of 2000 be joined together in that each matter had Choice Commercial Cleaning Pty Ltd named as the respondent. The Commission acceded to the request. A further hearing was held on 13 December 2000, where the Commission was advised by Ms V. Semple (ALHMWU), that following preliminary hearings, there had been discussion held between the parties, on a without prejudice basis, and that a settlement of both claims had been reached. A requirement of the settlement was that payments of the amount of monies agreed would be made by 17 November 2000. However, the respondent had failed to make the payments as agreed. The Commission was not informed of the arrangements regarding settlement. The matter was set down for hearing on 18 and 19 January 2001, and that day, the respondent, who had been legally represented at previous hearings, failed to attend. The hearing was adjourned whilst efforts were made to contact the respondent without success. The Commission, having had the opportunity to scrutinise the issuing process of the Directions Orders, was not entirely convinced that they been served in the correct manner upon the respondent, and rescheduled the hearing until 12 and 13 March 2001. Further Directions Orders were served upon the parties by registered mail with those addressed to the respondent being returned unclaimed on 15 February 2001. On 19 February 2001, the Commission again served the Orders on the respondent, and at the time of hearing on 12 March 2001, whilst there had not been compliance of the directions by the respondent, they had not been returned to sender. At the commencement of proceedings on 12 March 2001, there was again no appearance by the respondent which brought about a submission by Mr J. Martin, of the ALHMWU, that the respondent’s previous legal representation at hearings, was in fact a confirmation that there was an awareness of the proceedings, and requested that the matter go ahead ex parte. The Industrial Relations (Tribunals) Rules 2000 allows for an application, under s. 278 of the Industrial Relations Act 1999, to be heard in the respondent’s absence:– “Hearing in the respondent’s absence 62. A commissioner may hear and decide an application under section 27812 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.”. It was the view of the commission that the circumstances in this matter satisfied the criteria in respect of subclauses (a), (b) and (c) and accordingly the hearing proceeded in the absence of the respondent. The evidence in support of the case for the applicant, was given by Ms Barron, Ms Christison and Mr Colin Struthers an organiser of the ALHMWU. Ms Barron, in evidence, detailed her employment with Choice Cleaning Pty Ltd, which commenced on 18 May 2000 and finished on 30 June 2000, and included reference to:– • wages – $13 per hour (weekday) $16 per hour (weekends); • work locations; • allocation and direction of work; • signing (forced) of a contract; and • non-supply by applicant of cleaning equipment, materials or chemicals. The evidence of Ms Christison, who commenced her employment with Choice Cleaning Pty Ltd on 20 May 2000 and finished on 21 August 2000, was of a similar nature to that of Ms Barron in that she received the same level of wages and experienced similar working conditions. In the evidence of both Ms Barron and Ms Christison, if they were to be absent from work, they were given directions not to arrange for other persons to replace them as that would be the responsibility of Mr Hazel. Mr Struthers gave evidence that both Ms Barron and Ms Christison had approached him in his capacity as a union organiser with the responsibilities for the Contract Cleaning Industry, and sought assistance based on their belief that they were employees covered under the terms and conditions of the Contract Cleaning Industry Award – State and not subcontractors as was the view of Choice Commercial Cleaning Pty Ltd. Mr Struthers, whose evidence indicated that he was a union official with extensive experience in the Contract Cleaning Industry, formed the view that for all intents and purposes, both of Ms Barron and Ms Christison were employees and, on that understanding, had cause to prepare a document scheduled 1, which was attached to his affidavit of evidence. -- 2 of 3 -- 30 March, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 335 The attachment (schedule 1) set out in detail all of the relevant employment data, including a comparison between the level of wages paid to Ms Barron and Ms Christison and the remuneration for which they would have been entitled to receive if paid in accordance with the Award. His calculations had Ms Christison being underpaid an amount of $3,105.75 and underpayment to Ms Barron of $979.19. Final Submissions Mr Martin, in final submissions, stated that the evidence before the Commission clearly demonstrated that both applicants were employees, and relied upon Stevens and Gray v Brodribb Sawmilling Co Pty Ltd 160 CLR 16, a High Court Decision in 1986, that established a set of indicia that determined whether a person was an employee or an independent contractor. It was further submitted that the application of the control test in this matter demonstrated that both Ms Christison and Ms Barron were employees. The sworn evidence of Mr Struthers, including schedule 1 which identified the entitlements under the relevant Award, was in the view of Mr Martin, sufficient to warrant the Commission granting the application in the terms sought. Conclusion In the determination of this matter, the Commission had only the evidence provided by the applicant, due to the failure of the respondent to attend the hearing. But nevertheless, the Industrial Relations (Tribunals) Rules 2000 at s. 62, allows for the hearing to occur despite the absence of the respondent. The Commission was required to form a view, in the first instance, as to whether Ms Christison and Ms Barron were in fact employees as opposed to independent contractors. In determining the employee verses independent contractor position, a number of factors were subject to my considerations including, but not limited to, the provision of equipment and materials, the obligation to work, hours of work and the delegation of the work by the employer. Additionally, the control test, put forward in Mr Martin’s submissions, was also considered by the Commission, and in the matter of Humberstone v Northern Timber Mills (1946) 79 CLR 389, Dixon J. said:– “The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.”. Therefore, having considered all of the evidence put before the Commission, I have formed the view that both the applicant’s were, for all intents and purposes, employees and as such, covered under the terms and conditions of the Contract Cleaning Industry Award – State. Further, on the evidence as provided at schedule 1 of the sworn evidence of Mr Struthers, I find that both Ms Christison and Ms Barron are entitled to the payments as identified in their applications. Accordingly, I order that Choice Commercial Cleaning Pty Ltd pay Ms Lee Christison an amount of $3,105.75 gross, and Ms Milissa Barron an amount of $979.19 gross within 22 days of the release of the decision. J.M. THOMPSON, Commissioner. Released: 19 March 2001 Appearances:– Mr J. Martin, of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees, for the Applicant. -- 3 of 3 --