Purdy v Australian Waste Recyclers 1 Pty Ltd and anor [2007] NSWIRComm 303 | Case summary

1 These are proceedings brought under s 106 of the Industrial Relations Act 1996 ("the Act") by the applicant, Richard Purdy, against the first respondent, Australian Waste Recyclers 1 Pty Limited, and the second respondent, Barry Thomas Purdy. The first respondent is in liquidation and the applicant has secured the appropriate consent of the Supreme Court of New South Wales for the proceedings to continue against the first respondent on terms that are not, currently, relevant. 2 The applicant is the brother of the second respondent who was a director and shareholder of the first respondent. 3 The proceedings are constituted by a summons filed on 16 February 2004. The applicant seeks to impugn as unfair a contract of employment between himself and the first respondent. In essence, the applicant alleges that he was employed by the first respondent and that the level of remuneration was less than that which was applicable by reference to the provisions of the Chemical Workers (State) Award. The precise manner in which the contract of employment is alleged to be unfair may be gained by reference to two of the particulars contained in the summons. Particular (a) asserts that the contract is unfair "in that it is designed to, or does in its operation, avoid the provisions of….the Chemical Workers (State) Award". Particular (c) alleges that the contract is unfair "…. in that it provides a total remuneration of (sic) the Applicant which is less than what an employee would receive in performing the work, in the event that an employee was remunerated under the minimum terms and conditions of the Chemical Workers (State) Award." 4 For completeness I note that there is also a claim made referable to an appropriate level of superannuation contributions. 5 In paragraph D, the summons sets out particulars of the manner in which any amount claimed is calculated and, relevantly for the purpose of "underpayment" of remuneration compared to the Chemical Workers (State) Award, says "The Applicant makes a claim for a sum of money in connection with the contract representing the difference between his actual earnings and what he would have earned had he been remunerated at material times as a Chemical Plant Operator Class 1 in accordance with the provisions of the Chemical Workers (State) Award including minimum award wage, overtime, shift allowances, and meal breaks. This is an amount of $96,839.00 and the Applicant claims accordingly. A schedule of calculations will be made available to the Respondents upon request." 6 By letter dated 12 May 2004, the respondents' solicitors sought particulars from the applicant's solicitors including particulars as to how the amount of $96,839 was calculated. By letter dated 13 May 2004, the applicant's solicitors responded by furnishing a schedule of calculations which commenced 17 August 1997 (the date when the contract of employment was said to commence) and which concluded on 31 December 2003. 7 However, although the particulars referred to a commencement date of employment being 17 August 1997, the summons makes clear that at the time that the applicant commenced employment on that day, his employer was a company, Treatment and Recycling NSW Pty Limited, which at the time of the commencement of proceedings was under external administration. The summons states that on or about 4 or 5 December 2002, the applicant's employment with that company "was transferred to the first respondent, which occurred without the consent or knowledge of the applicant at that time." 8 The summons says that as at the date of its filing "the applicant remains employed with the first respondent." But there is no mention in the summons that any claim for further monetary compensation was to be made beyond the amount of the claim calculated to 31 December 2003. 9 By amended summons, filed 17 August 2006, the applicant sought to claim monetary compensation for a period commencing 5 December 2002 to a period extending beyond 14 October 2004 "to date". Although the reference to "to date" prima facie is a reference to the date of the amended summons being 6 August 2006, the amended summons makes reference within the factual narration to the cessation of employment with the first respondent on 26 May 2005. It may be assumed, therefore, that the amended summons seeks monetary compensation by reference to the underpayment, which I have previously described, for the period 5 December 2002 to 10 May 2005. The commencement date coincides with the commencement of the employment of the applicant by the first respondent. 10 The amended summons was filed in circumstances that permitted the respondents to take whatever objection was appropriate as to its form. The second respondent raised a number of concerns with respect to the form of the amended summons and agreement has been reached between the parties by means of the sensible and practical approach of their counsel to resolve all outstanding matters save one, which is the subject of this interlocutory judgment. The second respondent submits that the original summons for relief is incapable of being amended and ought not be amended so as to allow the applicant to seek to make any claim for monetary compensation beyond 31 December 2003, being the date to which compensation was claimed in that summons. 11 Put shortly, the second respondent says that if the original summons is amended, the amendment takes effect from the date that it is actually made. In these circumstances, it was submitted that the amendment was "seeking to add a cause of action that had not accrued at the time of filing the original summons…." The cause of action was said to be the claim for underpayment beyond any period commencing 16 February 2004, being the date of filing of the original summons. 12 Furthermore, the second respondent submitted that any such claim would be time-barred under s 108B of the Act because the applicant's contract of employment with the first respondent had terminated on 10 May 2005 and the applicant had only 12 months in which to commence an action from that date. The filing of the amended summons on 17 August 2006 occurred well after the expiry of this period. 13 For completeness, I set out the provisions of s 108B of the Act which are as follows: s 108B Time for making Application (1) An application for an order under this Division in relation to a contract that has been terminated must be made not later than 12 months after the termination of the contract. (2) The Commission does not have jurisdiction to extend the time for making any such application or, subject to subsection (3), to accept an application made after the time prescribed by subsection (1). (3) The Commission may accept an application made within 3 months after the time prescribed by subsection (1) if the applicant satisfies the Commission that there are exceptional circumstances justifying the making of the late application. 14 The second respondent submitted that he would be prejudiced if the applicant were permitted to amend the proceedings by making a claim for continuing payments in an amount which exceeded that contained in the original summons. The obvious prejudice is the potential liability to pay a larger amount by way of compensation. It was said by the second respondent that he had participated in conciliation and had been engaged in the preparation of the proceedings, including filing affidavit evidence, on the basis that this was, in effect, a claim for a specified closed period and prejudice would attach to the need to consider the applicant's claim beyond that closed period. 15 Before considering the applicant's response, and the resolution of the controversy, I should also refer to the contents of the applicant's substantive affidavit filed in the proceedings on 25 May 2005, a date which was well prior to the filing of the amended summons on 17 August 2006. 16 At [62] of that affidavit, the applicant said that "….from on or about January 2000 through to the present time I have received effectively $1,100 gross per week….despite the commencement of these proceedings that is still the current arrangement…." The applicant exhibited to that affidavit copies of pay slips received "from 7 January 2004 to date, which I have received from the First Respondent." 17 Furthermore, that affidavit stated that the applicant was then currently employed on a full time basis by the first respondent but that he had tendered his resignation effective 26 May 2005 due to health and family concerns and he proposed to return to New Zealand to live. 18 Although there is reference to continuing employment in the applicant's affidavit, there is no reference in it to any continuing claim for compensation being made for the purpose of the proceedings. 19 The applicant submitted that all that was being sought by the applicant was the ability to quantify what was essentially a continuing claim for underpayment, which persisted throughout the totality of the applicant's employment with the first respondent. That employment had not come to an end as at the date of the filing of the original summons and it was therefore necessary to amend the proceedings so as to include reference to the further claim for monetary compensation. 20 In essence, the matter for consideration is whether or not the applicant's claim as constituted by the summons in its original form was for a closed period as asserted by the second respondent or whether it was a claim of a continuing nature as asserted by the applicant. In the former case, the further claim would be time-barred by s 108B. In the latter, it would be permissible to amend the proceedings assuming that the Court's discretion should properly be exercised in this way. The point is a short one, but its resolution is not so clear-cut. As I have pointed out, it is abundantly clear from the contents of the original summons that the applicant remained employed by the first respondent as at the date it was issued. There seems no reason in logic why the applicant would not wish to have pursued his claim for underpayment for so long as he remained employed by the first respondent. Despite this, however, the summons itself contains no clue that would be indicative of any continuing claim made by the applicant beyond its date. Surely, if the applicant had wished to make it clear that such a claim was to be made, then all that was necessary was to use appropriate words to this effect. No such words are contained within the summons. 21 As I have pointed out, also, the applicant' s affidavit filed in support of that summons makes it abundantly clear that he continued in employment until 26 May 2005 and, as a matter of implication, the underpayment continued until that date. The affidavit does not refer to any continuing claim as such; perhaps at that stage it was not thought necessary to do so because this might be inferred. However, any such inference would gain some support from some reference to a continuing claim in the summons. 22 If this were a court of strict pleading, my task would be a great deal easier. However, it is not a court of strict pleading. (See Klein, PMG and ors v Adler, Rodney Stephen and ors [1996] NSWIRComm 184 per Schmidt J). 23 Although not a court of strict pleading, it is, however, necessary for a certain degree of particularity to be contained within the initiating process. Rule 18 A of the Rules of this Court requires the summons to "specify in summary the matters of fact and law which form the basis of the application, but not the evidence by which those facts are to be proved, and….contain sufficient information to allow the Commission to carry out its duty to conciliate under s 109 by a succinct summary." 24 In order to determine the controversy between the parties, I intend approaching the matter by reference firstly to a characterisation of the summons in its original form and secondly by considering in that context the claim made in the amended summons. In its original form the summons seeks to impugn the contract of employment between the applicant and the first respondent, by ascribing unfairness to it in a number of specific ways, all, relevantly, for the purpose of this interlocutory proceeding relating to the underpayment and the failure to make superannuation contributions. The amended summons seeks to impugn the exact same contract of employment and seeks a finding of unfairness described in the same manner. The only change of significance for the purpose of this interlocutory application is a claim that the same unfairness continues to manifest itself in a way that would allow further monetary relief to be awarded. 25 Seen in this way, I am of the opinion that the amended summons is, in reality, an amendment that the applicant is entitled to pursue without being caught by s 108B. The amendment constitutes an application for an order under s 106 in relation to the same contract that is the subject of the proceedings in the original summons. It is an amendment that affects quantification of the claim only and does not involve the making of any new or different allegations of unfairness such that it might be characterised as a new or different application to that constituted by the original summons. 26 Characterised as such, it is permissible for the applicant to amend the proceedings within the wide discretion given to this Court by its Rules, the nature of which was not in dispute. 27 Obviously, the second respondent will need to ascertain whether it will be necessary for him to file any additional evidence to meet the continuing claim. I apprehend from the applicant's evidence filed to date that no further facts are put forward to cover the additional period which would be allowed by the amendment other than the fact that the employment continued until 26 May 2005 accompanied by the exact same unfairness, namely the underpayment and the failure to remit superannuation payments. There is no suggestion that the lapse of time or any other matter would create any prejudice to the second respondent if the amendment were permitted to be made. Of course, on a prima facie basis, the second respondent should be protected for costs thrown away by reason of the amendment, subject to any persuasive submissions to the contrary brought by the applicant. 28 I conclude, therefore, that the second respondent has not demonstrated any prejudice that would warrant rejection of the amendment sought by the applicant. 29 For the reasons that I have set out, I propose to allow the applicant to amend the proceedings in the manner sought. Costs would normally follow the event (save for the second respondent's costs thrown away). The question of costs was not argued and I shall reserve costs.

Purdy v Australian Waste Recyclers 1 Pty Ltd and anor

At a glance

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Before

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Judgment (12 paragraphs)

Parties

Cases Cited (1)

Cited By (1)