Diener (Department of Industrial Relations Rockhampton – for Newton) v Central Electrics (Contracting) Pty Ltd [2004] QIRC 163 (2004) 177 QGIG 150

150 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 September, 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – application for unpaid wages Jenny Diener (Department of Industrial Relations Rockhampton – for David Newton) AND Central Electrics (Contracting) Pty Ltd (No. W107 of 2003) COMMISSIONER THOMPSON 3 September 2004 Unpaid wages – Arbitrated matter – Witness evidence –Amount owing to applicant – Severance payment – Application granted in part. DECISION Background An application was filed with the Industrial Registrar on 2 October 2003 by Ms Jenny Diener of the Department of Industrial Relations (applicant), in which she sought an order from the Commission for the payment of unpaid wages to Mr David Newton from Central Electrics (Contracting) Pty Ltd (respondent). At schedule 1 of the application, details of the claim were set out identifying the period in question and the amount allegedly owing. Further, at schedule 2, an assessment of the arrears of wages allegedly owing at classification C3 under the Engineering Award – State and the Engineering Award – State 2002 (the Award), was documented. The total amount sought was $15,470.10. Applicant The applicant in the proceedings relied upon evidence given by Mr Newton and Mr Joseph Spelta. Newton Mr Newton gave his occupation as a Design Draftsperson, having followed that occupation for four years. His evidence went to his employment with the respondent, which covered the period from 9 November 1998 until 16 March 2001, further identifying the business of the respondent as the design, manufacture and installation of switchboards. In breaking down the employment, the Commission was informed that, prior to commencing employment with the respondent, the witness had been employed by BPM Cowlrick Pty Ltd which, like the respondent, was part of the JM Kelly Group of Companies. In terms of qualifications held by witnesses at the time of his commencement date with the respondent, he stated at paragraph 17 of his affidavit: “At the commencement of my employment by Central Electrics (Contracting) Pty ltd I held certificates of competency in three modules of the Certificate In Applied Science (Computer Aided Drafting) from the Rockhampton College of TAFE and had completed all modules of my Bachelor of Engineering (Mechanical) with the exception of Project Preparation and Project Implementation which I completed in 2001, thereby gaining my degree.”. It was his evidence that by virtue of his qualifications at the time of engagement he was eligible to perform work at the C3 level of the Engineering Award – State. In respect of duties performed whilst in the employ of the respondent at paragraph 23 of his affidavit, he stated: “My duties during employment were: a) design drafting for distribution switchboards, motor control centres and main switchboards; b) design drafting of enclosures for distribution switchboards; c) designing equipment layout and busbar installation within the switchboard to specification and customer requirements; d) producing bills of materials for all components of the switchboard for placement of orders; and e) any other duties as directed by the Manager or Assistant Manager as required and perceived to be within the scope of my abilities.”. He gave evidence of a reference from Mr Grant Olive, dated 19 March 2001, which confirmed his duties whilst in the employ of the respondent. -- 1 of 8 -- 17 September, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 151 A series of drawings detailing work carried out in respect of the Capricornia Correctional Centre on which the witness worked were tendered in the proceedings. It was his evidence that he was not directly supervised during the process of designing switchboards. In terms of hours of work and remuneration, he stated that he generally worked five, eight hour days or 40 hours per week, receiving a rate of $15.50 per hour for the duration of the employment. During the period of employment, it was claimed that numerous hours of overtime were worked for which there were no substantiating records. The employment was terminated on 16 March 2001 due to the employer having insufficient work. On his evidence, the claim was broken down into two parts, those being: • Wages and overtime – $11,414.70 • Severance Payment – $4,055.40. Evidence-in-chief given by Mr Newton went to other projects on which he worked and his involvement in the design drafting process. Ms Katy Russell, of Livingstones, in cross-examination, raised matters including: • Letter of appointment • Switchboard • Circuitry of design (page 36, line 36 of transcript): “Russell: Well did you have anything to do with the circuitry? Newton: In that it was provided to me to influence the design I produced in the physical design of the enclosure. Russell: Did you have anything to do with the choice of the circuitry or the choice of what components were used? Newton: No. Russell: Were you qualified or able to have any influence on the design of the circuitry? Newton: No. Russell: And when you had finished doing a drawing were you able to sign off or approve the drawing or did that have to be signed off or approved by someone other than you? Newton: That was the responsibility of the manager. Russell: Would you agree that when you drew a switchboard you drew it from these various options you sometimes would have drawn it from a hand sketch that Mr Wolf or Mr Olive might have drawn? Newton: Yes.”. • Auto CAD • Mr Newton’s job (page 42, line 14 of transcript): “Russell: Okay, I’ve just got one final question, just going back to your job in an overall sense. It’s your testimony that your client gave your job, designing switchboards, despite the fact that on your wages and conditions form that you’ve confirmed with us that you had no electrical qualifications, that you had no electrical experience, that you were unable to design circuitry, that you were unable to approve a drawing of a switchboard because you didn’t have those qualifications, and also in your testimony that you could perform this role without supervision; is that correct? Newton: Yes.”. Spelta Mr Spelta, an Electrical Project Manager by occupation (now currently employed as a bus operator), had been employed by the respondent from 5 June 2000 until 11 January 2001. He gave evidence that the business of the respondent was the design, manufacture and installation of switchboards. Whilst employed, his duties included the coordination of labour and materials for various projects as well as coordinating supplier quotes for inclusion in tender submissions. He worked on a number of projects including the Capricornia Correctional Centre Mechanical Services job. In the course of his employment he stated that he had observed and used Mr Newton’s services at the direction of Rockhampton Switchboards management. -- 2 of 8 -- 152 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 September, 2004 It was claimed that Mr Newton had been directly involved in the “complete design and plan for construction of switchboards for installation” by the respondent and external customers. In the course of cross-examination it was established that the witness had filed an application for reinstatement following his termination by the respondent. It was further established that the witness had no direct role in allocating or supervising work undertaken by Mr Newton. Respondent Olive Mr Olive, the Manager of Rockhampton Switchboards has been employed by the respondent for the last 23 years. He is a qualified electrician additionally holding an Electrical Workers Licence and is the endorsee on the respondent’s Electrical Contractors licence. Previous evidence in respect of the business of the respondent was confirmed by the witness. Evidence was given on Mr Newton’s commencement with the Company and the qualifications he held at the time of commencing employment. Mr Olive had discussions with Mr Newton at the time he moved across from BPM Cowlrick indicating that his accrued entitlements transferred across with him and that his salary of $620 gross for 40 hours per week work remained the same. He disputed Mr Newton’s claim that he worked numerous hours of unrecorded overtime. In going to the process of designing and manufacturing switchboards, he stated that it could be broken down to the following steps: (a) submit quote; (b) order received from customer to proceed with manufacture; (c) compare construction specification to tender specifications to determine if client’s requirements have changed or been modified; (d) design the switchboard layout, line diagram and control circuit; (e) convert sketch to CAD drawing; (f) submit drawing for approval to client; (g) on receipt of approval, order enclosure and equipment i.e. switchgear, busbar, cleats, meters etc; and (h) install equipment in enclosure, test and commission, package and deliver to client and invoice. In summarising the role of Mr Newton in the process, he stated, at paragraph 16 of his affidavit: “In summary, Mr Newton’s duties could best be described as drafting, drawing or detailing rather than designing. The key difference is that Mr Newton was not required to exercise original thought in his duties. Under my direction and instruction or that of Mick Wolf, Mr Newton was drafting an electronic version of the hand-drawn layout of the switchboard.”. At the completion of the task, the work performed by Mr Newton would have to be checked and approved by either the Assistant Manager or himself. Whilst acknowledging that a reference given to Mr Newton on 19 March 2001 did, in effect, identify his duties to include “design drafting for distribution switchboards, motor control centres and main switchboards” his evidence was that he attempted to describe the duties in the most advantageous terms in order to assist him in seeking further employment. On the issue of the reference, an exchange took place between the witness and the Commissioner, which appears at page 71, line 28 of transcript: “Commission: Yes, you would also understand that, you know, when you give someone a reference that a potential employer’s going to look at that reference and sometimes the difference between getting a job or not getting a job can come down to references? Olive: Yeah, that’s right. Commission: So that you feel comfortable within yourself that you’re happy to send Mr Newton off to an employer with this reference and knowing, in a sense, that he didn’t actually do that work? Olive: Now, no, possibly not. Commission: But at the time you felt comfortable with that? Olive: Um, yes, I was but I still – Dave still didn’t do the actual design of the electrical part of the switchboard or – well he – Dave drew the mechanical part of the switchboard, the enclosure, that’s – that’s what Dave did. Commission: Well what’s the difference between mechanical and equipment? Olive: Mechanical is the metal work. Commission: Yes, so but you’ve said in this he designed equipment, layout – would that be electrical equipment? Olive: That’s correct, yeah. Commission: But he didn’t actually do that, did he? Olive: No.”. On the evidence given by Mr Spelta, he gave evidence that whilst he worked in an adjoining office to Mr Newton he would have only dealt with Mr Newton on minor issues. -- 3 of 8 -- 17 September, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 153 Questions put to the witness during cross-examination by Ms Diener included: • Definition of a switchboard • Mr Newton’s level of skill as at 6 November 1998 • Failure to provide letter of appointment to Mr Newton • Duties performed by Mr Newton • Mr Spelta’s work tasks • Reference given to Mr Newton (page 86, line 42 of transcript): “Deiner: I put it to you, as I said, that he did those things and you wrote the reference accordingly? Olive: He didn’t design switchboards.”. Shephard The last witness relied upon by the respondent was Mr Shephard, a consulting engineer for the past nine years. In pursuit of his calling he has been engaged by clients to review work undertaken by Rockhampton Switchboards which he stated gave him an awareness of the process of designing and manufacturing switchboards. His evidence went to the affidavit provided by Mr Olive, with him agreeing that the description of the role undertaken by Mr Newton was that of a draftsperson. He had further taken the opportunity to peruse the Engineering Award – State and, in particular, the classification structure where he had formed the view that Mr Newton should be classified as a C8 or C7. At paragraphs 7 and 8 of his affidavit, he gave his reasons for reaching such a conclusion: “7. My reason for this assessment is that Mr Newton would have had to exercise some skill and judgment (as described in C8 and C7), but not originality of thought which is a concept that arises in C6. this is because Mr Newton was translating someone else’s design into a drawing. 8. It is also apparent that Mr Newton was under the supervision of Technical staff. At the levels of C5 and higher, there is no longer an element of supervision so clearly these levels do not match the description of Mr Newton’s duties.”. Mr Shephard disputed the claim advanced by Mr Newton for either C4 or C3 status suggesting that on his own evidence he had worked under some degree of supervision and instruction, being only responsible for part of the process of switchboard design. Finally, he identified the subjects from Mr Newton’s qualifications that were, in his view, relevant to the function of drafting switchboard layouts. Whilst cross-examination of Mr Shephard was brief, matters raised in respect of his direct knowledge of Mr Newton’s work were touched upon: • Page 94, line 24 of transcript: “Diener: So you know Mr Newton do you? Shephard: No, I know of his work. I was – I was involved in two shutdowns at Moura with which he was involved in. Diener: Right. Right. Have you actually seen him work? Shephard: No. Diener: Have you actually seen the details of instructions that were given to him by Mr Olive or Mr Wolf at any time? Shephard: No.”. • Page 97, line 6 of transcript: “Diener: I understand that and that’s been established. It’s not been the contention here that Mr Newton ever provided electrical work for which he wasn’t qualified. But I’m saying to you, can you provide direct evidence that Mr Newton did not make major design drawings or graphics – I didn’t say they had anything to do with electrical componentry or anything electrical? Shephard: No. Diener: So is it correct to say that at no time did you observe Mr Newton in his role at Rockhampton Switchboards? Shephard: That’s correct.”. Submissions Applicant Ms Diener opened her submissions by referring the Commission to the standard of proof being on the balance of probabilities. The claim itself turned upon the qualifications of Mr Newton, the level of work performed and how the Award provides for that work in terms of classification and remuneration. -- 4 of 8 -- 154 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 September, 2004 The qualifications held by Mr Newton at the time were such to render him qualified at the level of an engineering associate, level 2. In terms of the work performed, it fitted comfortably under the wage group C3 with Mr Newton completing the work through until the final installation. At no time has it been claimed that the design of electrical circuitry of the switchboards was undertaken by Mr Newton however, the demands of the tasks went beyond that aspect of the job. The direct evidence from Mr Spelta supported the position advanced in the application and despite an attempt by the respondent to discredit the testimony of Mr Spelta following an unfair dismissal application, the Commission should accept his evidence. Ms Diener challenged the evidence given by Mr Olive which, in her words, sought “to minimise the complexity of Mr Newton’s work and his abilities”. On the matter of the reference provided by Mr Olive according to Ms Diener it was plausible that he was being honest at the time of writing the reference but had changed his story following the lodgement of the claim against the company. On the evidence of Mr Shephard, the submission was that he had no direct knowledge of the work performed by Mr Newton and that his evidence was based upon information provided by Mr Olive. In summary, Ms Diener (at page 103, line 18 of transcript) stated: “Finally, I submit, Commissioner, the employee is an entirely credible witness who throughout the process of bringing his claim, which has been subject to protracted investigation and research for over two years, has remained objective and without vexatiousness. He’s maintained this position throughout this hearing and seeks only to establish through the process, the level at which he worked for the employer and to be renumerated accordingly. I therefore submit, Commissioner, that on the balance of probabilities, the case for the applicant is established.”. Respondent In providing submissions on behalf of the respondent, Ms Russell identified the crux of the claim as about the correct classification under which Mr Newton should fall. On commencing employment with the respondent, Mr Newton had no relevant electrical qualifications, nor electrical experience with his own evidence confirming that his experience and qualifications were based in the mechanical engineering field. It is not argued that six of the subjects completed by Mr Newton related to his position at Rockhampton Switchboards and that his experience with Auto CAD had been important in the reasons behind his employment with the firm. In respect of his duties, they according to Ms Russell could be best described as drafting or drawing rather than design with the key differences between the parties being that Mr Newton was not required to exercise originality of thought. At all times he functioned under the direction and instruction of either the manager or assistant manager. The parties were not in dispute over the electrical circuitry of the switchboard, however it was the view of the respondent that the key feature of the design lies in the circuitry. The evidence from Mr Shephard was useful in that his industry experience enabled him to identify the difference between a tracer, detailer and designer. On the reference provided by Mr Olive, he had admitted that he should not have used the word “design”, however regardless of that, the reference still referred to the position as a draftsman. The claim for payment at the C3 rate was rejected with the appropriate classification, in the view of the respondent, being the C8 level. It was argued that the weekly rate received by Mr Newton was at $620 per week, substantially higher than the C8 during the period of his employment. The C8 rate at the commencement of employment was $506.90 per week, having moved to $533 per week at the time of termination. If the qualifications (alone) of Mr Newton were taken into account, it may be argued that a C7 rate may apply, however that would not necessarily help the application as there is also a requirement to take into account the relevant training, experience and the duties performed at the classification level. Ms Russell drew a number of comparisons between a range of classification levels to support her argument. In relation to the exemption clause contained within the Award that applies from the C5 classification upwards it was acknowledged in the submission that the respondent had not complied with the provision however, according to Ms Russell that was a bona fide error. A number of comparisons in dollars terms were tendered which identified a range of scenarios. On the issue of the overtime claimed it was argued that the claim could be offset against monies paid over and above the Award rate but a similar offset could not apply to severance pay. The Commission should consider the evidence of Mr Spelta based upon him being an aggrieved ex-employee who did not directly work with Mr Newton. The matter of the claim for severance pay was raised by the Commission at page 118, line 20 of transcript: “Commission: Now. I’m just wondering what you say about the claim for severance pay? Russell: Commissioner, we didn’t – the evidence that we led on that was that he was terminated because there was insufficient work. The matter has never really be resolved because of the issue about what level he should be paid at so we’ll just leave that to the Commission’s discretion.”. -- 5 of 8 -- 17 September, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 155 Ms Russell, in the submission, relied upon a number of authorities including: • Ray v Radano [1967] AR (NSW) 471 at 478-479 and Poletti v Ecob (No. 2) (1989) 31 IR 321 as cited in The Haggarty Group Pty Ltd v Justin Wallace (C69 of 2000) and Justin Wallace v The Haggarty Group Pty Ltd (C70 of 2000) 166 QGIG 16 at 417-420. Decision The application before the Commission is effectively in two parts in that there is a claim relating to wage rates and overtime and, in addition, a claim for a severance payment not paid to Mr Newton at the time of his termination. It is common ground that Mr Newton was engaged on a rate of $620 per week which required him to attend work for 40 hours per week. The terms and conditions were outside of the Award which in all of the circumstances should have been the industrial instrument governing the employment. The application seeks payment for all hours worked at the C3 rate (relativity to C10 – 145%) with a payment for two hours per week (for those hours worked in excess of 38 hours per week) to be paid at the appropriate rate. The respondent, in opposing the claim, argued that the applicable rate should be that apportioned to the C8 rate (relativity to C10 – 110%) and that the claim for overtime be offset against monies already paid (whilst employed). As is the case in a majority of hearings conducted by the Commission, the credibility of the witnesses often have a major influence in the outcome of applications with this matter not being an exception. Both the principal witnesses (Newton and Olive) for each of the parties gave evidence that was accepted by the Commission as an honest recollection of events relating to the employment and the claim. The Commission, in balancing up the evidence, exhibits and submissions will reach a judgement, the outcome of which should not reflect in a negative manner upon either of the principal witnesses. In respect of the other witnesses (Spelta and Shephard) the following is said: Spelta: Whilst the respondent contended that he was an aggrieved ex-employee (and the Commission sees some merit within that position), it was simply the case that his evidence was unable to assist the Commission for the reason that, in reality, he did not have sufficient contact with Mr Newton that would convince the Commission his evidence should be accepted as to the work performed by Mr Newton. Shephard: In the case of Mr Shephard, he undoubtedly had wide industry experience, however his evidence was based upon information provided solely by Mr Olive and, therefore, not of a standard to have an influence of a major nature on the outcome in this matter. The Commission, in determining the application, must address each of the following areas: • appropriate classification level under the Award; • the wages and overtime component of the claim; • severance pay; and • amount (if any) owing to Mr Newton by making the comparison between monies paid (whilst employed) and the amount he would have earned under the appropriate Award rates. Appropriate classification level under the Award It was acknowledged by each of the parties that the classification structure under the Award was, in effect, the same as that would have been applied to Mr Newton during his employment between 1998 and 2001. Ms Deiner tendered a copy of the Award (exhibit 2) in the proceedings and identified, at page 22, the classification of wage group C3: “5.5.14 Wage Group C3 (Relativity to C10 – 145%) Engineering Associate – Level II Engineering Associate Level II means an employee who works- above and beyond and Engineering Associate at Level C4 and has successfully completed an Associate Diploma or equivalent and is engaged in: (a) performing draughting, or planning or technical duties which require the exercise of judgement and skill in excess of that required by an Engineering Associated at Level C4; or (b) possesses the skills of an engineering Associate Level I in a technical field and exercises additional skills in a different technical field as defined.”. The classification identified by the respondent was that of the wage group C8: “Engineering Technician – Level II Engineering Technician Level II means an employee who has the level of training and/or experience of an Engineering Tradesperson Level III or equivalent but is engaged in detailed draughting or planning or technical work which requires the exercise of judgement and skill in excess of the required of an employee at C9 under the supervision of technical staff.”. -- 6 of 8 -- 156 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 September, 2004 In terms of considering each of the views, the Commission found that from the aspect of both duties and qualifications, Mr Newton seemed not to fit comfortably in either of the groups advanced by the parties. On the evidence of Mr Olive, it would be reasonable to cast doubt on the claim by Mr Newton that he performed drafting or other duties that were in excess of the C4 level. On the other hand having concluded that the C3 claim was, in effect, overstated it would be the view of the Commission that, to accept the C8 classification as the level, would be to grossly understate the worth of the duties performed by Mr Newton. It was never contended that the electric circuitry formed part of Mr Newton’s duties, however the eventual “signing off” of the drawings completed by him would have, as a matter of course, to be completed by a person with qualifications such as those held by Mr Olive and his assistant manager. The Commission, having studied the drawings tendered in the proceedings, is of the opinion that the work performed was of a technical nature that would require, as a prerequisite, the capacity, as defined in wage group C6 (Relativity to C10 – 125%): “Engineering Technician Level IV (a) An engineering Technician Level IV means an employee who has the level of training and skills of an Advanced Engineering Tradesperson – Level I or equivalent but is engaged in one of the following areas to the extent of that training: (b) detailed draughting involving originality of thought which requires the exercise of judgement and skill in excess of that required of a Technician at C7 level under the supervision of Technical and/or Professional Staff; or (c) is engaged in planning or technical duties requiring judgement and skill in excess of that required of a Technician at C7 level under the supervision of Technical and/or Professional Staff; or (d) exercises a level or cross skilling in technical fields as defined.”. The factor of Mr Newton having mechanical qualifications as opposed to electrical qualifications gave some weight to the reason behind the Commission leaning towards the C6 level, however it must not be forgotten than the respondent through Mr Olive was well aware of this point when Mr Newton was transferred across. The reliance placed upon the content of the reference where it went to the issue of “design” is not lost on the Commission, however I have concluded that the explanation (in evidence) given by Mr Olive in the circumstances would reasonably allow a view to be formed that the reference was “beefed up” for the benefit of Mr Newton rather than “set in stone” the work he performed. For the purposes of completing the remaining tasks, the C6 level will be the applicable Award classification relied upon by the Commission. The Wages and Overtime component of the claim Having gone with the C6 classification as the weekly rates of pay that would have been applicable (under the Award) to Mr Newton, whilst in the employ of the respondent, they would have been as follows: 9 November 1998 to 31 August 1999 – $567.50 per week – $14.9342 per hour 1 September 1999 to 31 August 2000 – $577.50 per week – $15.1973 per hour 1 September 2000 to 16 March 2001 – $592.50 per week – $15.5921 per hour Note: The above figures were taken from exhibit 3 in these proceedings. In respect of the overtime claim for two hours per week for those hours worked in excess of 38 hours per week the Commission is prepared to accept that such hours should be treated as overtime hours albeit in accordance with the dissenting judgement of Sheldon J in Ray v Radano [1967] AR (NSW) 471 at 478-479: “The position, as I see it, is that where a complainant has been employed by a defendant on work covered by an award, he is entitled under s. 92(2) to claim any balance due to him between his award entitlement for his work and any payment made to him by the employer which is properly attributable to that award entitlement. If no more appeals than that (a) work was done; (b) the work was covered by an award; (c) a wage was paid; then the whole of that wage can be set-off against the award entitlement for the work whether it arises as ordinary time, overtime, week-end penalty rates or any other monetary right under the award.”. The claim will be offset by any amounts paid to Mr Newton that were in excess of the C6 level classification rate. Further, in respect of the calculation of monies in respect of overtime the Commission will rely upon s. 9(4) of the Industrial Relations Act 1999: “(4) If an employee is paid at a higher rate than the minimum rate prescribed in the industrial instrument, the overtime rate must be worked out on the higher rate”. Effectively, this means that the two hours per week be calculated at the rate of $15.50 per hour where that rate is in excess of the award hourly rate. Severance Pay In relation to the claim for severance payment, it is clear on the evidence before the Commission that the termination of Mr Newton was brought about as a result of the unavailability of productive work that could have been undertaken by him. The Company, at the time of termination employed 15 or more employees and with the length of service achieved by Mr Newton being more than two years but less than three years, he is entitled to receive a payment of six weeks wages at the C6 level of payment as at 16 March 2001. -- 7 of 8 -- 17 September, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 157 Amount (if any) owing to Mr Newton Monies for wages and overtime that would have been the remuneration received by Mr Newton had he been paid at level C6 of the Award: 1 September 1998 to 31 August 1999 42 weeks Wages: 42 weeks x $567.50 = 23,835.00 Overtime: 1.5 hrs x 2 x $15.50 = $46.50 42 weeks x $46.50 $1,953.00 Sub total = $25,788.00 1 September 1999 to 31 August 2000 52 weeks and 2 days Wages: 52.4 weeks x $577.50 = $30,261.00 Overtime: 1.5 hrs x 2 x $15.50 = $46.50 52.4 weeks x $46.50 = $2,436.60 Sub total = $32,697.60 1 September 2000 to 16 March 2001 28 weeks and 1 day Wages: 28.2 weeks x $592.50 = $16,708.50 Overtime: 1.5 hrs x 2 x $15.59 = $46.77 28.2 weeks x $46.77 = $1,318.91 Sub total = $18,027.41 TOTAL = $76,513.01 less 122.6 weeks (paid) x $620.00 = $76,012.00 Balance owing to Mr Newton = $501.01 Severance Payment 9 November 1998 to 16 March 2001 Entitlement: 6 weeks 6 weeks x $592.50 = $3,555.00 TOTAL = $4,056.01 Finding Having considered the evidence, material and submissions before the proceedings, the Commission finds that the respondent owes to Mr Newton the amount of $4,056.01 gross being for the under and non-payment of wages and severance pay. Such monies are to be paid to Mr Newton 22 days after the release of this decision. When processing the payment, the respondent’s attention is drawn to the taxation arrangements in respect of the severance component of the payment. Such arrangements are different than those that apply to wages and, if necessary, the respondent should seek professional advice to ensure that the deduction of taxation is correct. I order accordingly. J.M. THOMPSON, Commissioner. Hearing Details: 2004 29 July 19 and 20 August Appearances: Ms J. Diener, of Department of Industrial Relations Rockhampton, Applicant. Ms K. Russell, of Livingstones Australia, for the Respondent. Released: 3 September 2004 -- 8 of 8 --