Lane Industries Pty Ltd t/as Megalong Valley Farm v Steven James Billington and another

APPELLANT Mr G Lane - as agent

FIRST RESPONDENT LEGAL REPRESENTATIVES: Ms C Porter - as agent

SECOND RESPONDENT Ms C Porter - in person

JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Tuesday 16 December 2003

Matter No IRC 6918 of 2003 LANE INDUSTRIES t/as MEGALONG VALLEY FARM v STEPHEN BILLINGTON & ANOR

Application by Lane Industries Pty Ltd t/as Megalong Valley Farm to extend time to appeal and leave to appeal and appeal against the decision of Chief Industrial Magistrate given on 5 September 2003 in Matter Nos 76110 of 2003 and 76109 of 2003 INTERLOCUTORY JUDGMENT [2003] NSWIRComm 464

1 On 5 September 2003 the Chief Industrial Magistrate heard an application by Steven James Billington and Carolyn Faye Porter for recovery of money. The claim was made against the defendant at first instance, Lane Industries Pty Ltd t/as Megalong Valley Farm/Megalong Valley Heritage Centre.

2 Ms Porter claimed she was employed by the defendant between August and November 2001 as administration manager. She was not aware whether an award covered her employment. On 26 November 2001 Ms Porter provided the defendant with a letter of resignation, announcing her resignation "as of today". The letter further stated: The overtime I have accrued over the last three months more than covers my weeks notice.

3 Mr Billington had also been employed by the defendant from August to November 2001 as horse manager. He also provided a letter of resignation on 26 November 2001, essentially in the same terms as that proffered by Ms Porter. As I understand it neither Ms Porter nor Mr Billington worked out any period of notice.

4 Ms Porter and Mr Billington made claims as follows: Porter Billington Holiday pay - one week $ 576.92 $ 576.92 Overtime - 180 hours at $15.00 per hour $2700.00 $2700.00 Superannuation 9 per cent of gross pay $ 294.92 $ 294.92 Less monies paid $ 96.15 $ 50.14 Total $3475.69 $3521.70

5 The applications by Ms Porter and Mr Billington had originally been listed for hearing before the CIM on 6 August 2003. However, it would appear that as a result of a letter from the defendant to the CIM dated 5 August 2003, indicating that the defendant could not be in attendance on 6 August 2003, the hearing was postponed until 5 September 2003. The defendant's letter of 5 August indicated that a hearing date after 1 September 2003 would be suitable.

6 On 2 September 2003 the managing director of the defendant, Mr Gary Lane, wrote to the CIM indicating that he and his wife would not be able to attend the hearing on 5 September because they were "trying to get the existing sewage facilities approved …" Mr Lane said in his letter that without the approval they would be unable to conduct any business and would have to terminate staff. It does not appear that Mr Lane made any further inquiries as to whether the adjournment he sought had been granted. The adjournment was obviously not granted and the proceedings were dealt with ex parte.

7 The CIM made orders requiring the defendant to pay to Ms Porter the amount of her claim plus interest, lost wages and court costs (bringing the total to $4341.85) and, similarly, that the defendant pay Mr Billington $4395.36. The monies were required to be paid within 21 days. There is no information as to the basis upon which the orders were made other than that the CIM accepted the applicants' claims. The monies were not paid and the Sheriff has taken steps to seize goods to the value of the monies that are the subject of the CIM's orders.

8 The defendant has made application for leave to appeal and, if leave is granted, appeal against the orders made by the CIM and has sought an extension of time in which to appeal. A stay is also sought. The application for extension of time pursuant to s 189(2) of the Act became necessary, according to Mr Lane, because he was not advised of the CIM's orders until a Sheriff's officer arrived at his property to seize goods. By this time the period in which to appeal had expired: s 189 of the Act; r 42 of the Industrial Relations Commission Rules 1996, which provide for a period of 21 days in which to appeal.

9 I must observe that the Chief Industrial Magistrate's Court is a very busy Court. It is unsurprising that the CIM proceeded to deal with the matter ex parte given the reason for the defendant's non-availability. I was inclined to the view that the defendant had caused its own problems and that leave to extend time should not be granted. However, it is necessary for me to consider whether any injustice might be caused by a refusal of leave: WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298; Tadic v Beslic [2001] NSWIRComm 107; Anthony Andrew Cavacuiti and Anor v Toyota Motor Corporation Australia Limited [2002] NSWIRComm 341.

10 It would appear from the material before me that the defendant had paid to the applicants their accrued annual leave for the 13.7 weeks worked between August and November 2001. However, the applicants apparently complained to the Department of Industrial Relations regarding the underpayment of annual leave entitlements and following investigations by the Department the defendant agreed that a small adjustment was necessary in both cases. These adjustments ($50.14 and $96.15) were made and the Department did not pursue the matter further.

11 In her application to the CIM Ms Porter claimed that the payment purportedly made in respect of annual leave was a "normal weeks pay". This does not seem to be the case. It may be the one week's holiday pay ordered by the CIM amounts to double counting.

12 As to the overtime question, according to the applicants they were not paid overtime. The defendant's answer to this appears to be that on receiving each week's wages the applicants signed an acknowledgement that "the company is not liable for any outstanding claims for hours, monies, expenses or dispute whatsoever" and that the payment constituted "full settlement". An express or implied agreement between an employer and employee to the effect that the employer is not liable for underpayment of monies owed is not a bar to an order being made making the employer liable: s 370(2) of the Industrial Relations Act.

13 There was no information regarding the award coverage of the applicants. Ms Porter claimed she was employed as an administration manager. The defendant described Ms Porter's position as "assistant lodge manager". It may be the case Ms Porter's terms and conditions of employment were the subject of the Clerical and Administrative (State) Award. That award provides for the payment of overtime subject to certain exemption provisions. Alternatively, there may be some other relevant award covering Ms Porter's employment or, given the nature of the work performed - for instance that she was engaged principally in a managerial capacity and not a clerical or administrative capacity - no award applied to her employment. If no award applied the question of whether she was entitled to overtime payments would need to be determined according to what were the express or implied terms of the contract of employment between Ms Porter and the defendant.

14 Mr Billington was a horse manager. There was not sufficient information available regarding the nature of the work performed by Mr Billington to determine whether an award covered him and, if so, which award. If an award covered his employment it may be that he is entitled to overtime regardless of any agreement with the defendant to the contrary. If there was no applicable award then what I have said in relation to Ms Porter applies equally to Mr Billington.

15 With some reluctance I propose to grant the defendant an extension of time in which to appeal so that the application for leave to appeal and appeal filed by the defendant on 3 December 2003 is within time. I also propose to order a stay of the orders made by the CIM on 30 September 2003. However, such orders will be reviewable by me following further discussions between the parties to this appeal. Those discussions are to take place in light of the observations I have made in this interlocutory decision and with a view to settling the matter. If, following those discussions, the appeal proceeds the parties should be aware that the Full Bench may award costs against the losing party.

16 I strongly recommend to the parties that they seek legal advice.

17 I make the following orders and directions: 1. Subject to further order, the application to extend time to appeal is granted. 2. The orders made by the Chief Industrial Magistrate on 30 September 2003 in CIM case numbers 76109 and 76110 of 2003 are stayed until further order. 3. The amounts of monies that are the subject of the CIM's orders, namely, in the case of Ms Porter, $4,341.85 and in the case of Mr Billington, $4,395.36 shall be placed in an agreed trust account within 21 days. 4. The parties are directed to confer on the matters that are the subject of the appeal having regard to this decision. 5. The parties will report back to me at 10.00 am on Tuesday 20 January 2004.

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