Employee acts to recover overaward payments, superannuation and loss of vehicle: NSW

Cases

Employee acts to recover overaward payments, superannuation and loss of vehicle: NSW

Legislation exists in NSW that allows an employee, who can substantiate coverage by a State industrial instrument, to bring an action in an industrial court for recovery of entitlements other than those provided under the instrument

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Legislation exists in NSW that allows an employee, who can substantiate coverage by a State industrial instrument, to bring an action in an industrial court for recovery of entitlements other than those provided under the instrument. Here the employee sought recovery for overaward payments, unpaid superannuation and loss of use of a company car.

In this matter the employer had terminated the applicant’s employment to reduce costs. He allocated a new role to the applicant and this role attracted a reduced rate of remuneration.

Background

The was an appeal to a Full Bench of the IRC (NSW) against the decision of the Chief Industrial Magistrate (NSW) of 4 September 2003 in which $44,687 was awarded to the employee.

The Magistrate found that it was clear that the duties performed by the employee, despite his title of store manager, were of the class of work normally performed by a shop assistant in charge. This position fell within there is an industrial instrument fixing the minimum rate for work done under the contract - the award classification of a 'Shop Assistant in charge of 25 or more employees with the duty of buying' under the retail award.

Legislation

Industrial Relations Act 1996 (NSW) Part 2 of Chapter 7 (s 364 s 365 s 366 s 367 s 368) was in issue. Section 366 allows for an order for recovery of overaward payments under contract of employment. Section 368 allows for orders for recovery of unpaid superannuation.

Consideration

The Full Bench found that it had not been demonstrated by the employer that the approach taken by his Honour involved error or the conclusion reached was not open to his Honour. Leave to appeal was refused on the issue of overaward payment.

On the issue of the payment for the loss of the use of the motor vehicle the Commission considered that the loss of the use of the motor vehicle could not be said to be an 'amount payable' for the purposes of the legislation. Accordingly it concluded that his Honour erred in ordering the amount of $4,720 to be paid in respect of the loss of the use of the company car.

The third issue related to whether a payment could be made for the loss of superannuation. The Commission found that the phrase 'amount payable' was sufficiently wide to encompass the making of orders in favour of an employee as to unpaid superannuation contributions:

‘Having regard to the terms and purpose of s 366 and the importance of superannuation, which is at least an indirect payment to an employee, and also having regard the beneficial approach that is to be adopted in the construction of the relevant provisions, we consider the phrase "amount payable" in s 366 (as well as in ss 364 and 365) is sufficiently wide to encompass the making of orders in favour of an employee as to unpaid superannuation contributions.’

See: NKS Enterprises Pty Ltd v Mekary [2004] NSWIRComm 210, FB of IRC of NSW in Ct Session (Wright J, Kavanagh J and Staff J), 30 July 2004.

Related

On overaward payments generally

 

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