Jackson v Thermal Mechanical Suppliers Pty Ltd [2016] FWC 3676 (8 June 2016) [2016] FWC 3676 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.372 - Application to deal with other contravention disputes Mr Royce Jackson v Thermal Mechanical Suppliers Pty Ltd T/A MS/Rothwells (C2016/3592) SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 8 JUNE 2016 Application to deal with other contraventions dispute. [1] This decision arises from a notification pursuant to s.372 of the Fair Work Act 2009 (the Act). [2] In the General Protections Application Not Involving Dismissal (Form F8C) filed by the applicant against Thermal Mechanical Supplies Pty Ltd (the respondent) Mr Jackson alleged: “3.1 The Applicant sought payment for overtime he had accrued during his employment. The Respondent initially said ‘I can’t afford to pay you’. When the Applicant sought to pursue the matter, the Respondent said, ‘I am already paying you too much – I am going to pay you the correct Award rate for the work you are doing, which will mean you will owe me money’. Thereby, the Respondent was intimating that it was intending to, in terms of Section 342 (1), item 1(c), ‘alter the position of the employee to the employee’s prejudice’. All this was done in a highly intimidatory way which made the Applicant anxious. The applicant sought medical advice and was certified for sick leave of absence. ------ 3.3 (1) The action to deny the Applicant’s demand for the payment of overtime for time worked beyond the Applicant’s ordinary hours of work and in excess of the maximum weekly hours prescribed under the National Employment Standards (NES) were in breach of Section 62(a) of the Fair Work Act 2009 . (2) The manner used by the Respondent constituted aggressive behaviour which was both unwelcome and it was continuing in breach of Equal Opportunity legislation. (3) The implied threat to reduce the Applicant’s remuneration, especially without consultation, was in breach of Section 342(1) of the Fair Work Act, 2009 in that it sought to alter the position of the employee to the employee’s prejudice. (4) The Respondent claimed that the Applicant’s remuneration was paid under an annualized salary arrangement, in which case it was in breach of clause 24.1(g) of the applicable Award, The Manufacturing and Associated Industries and Occupations Award, 2010.” [3] The Response to General Protections Application (Form F8A) filed by the respondent stated: ● Thermal Mechanical Supplies Pty Ltd is not Mr Jackson’s employer. ● Mr Jackson is employed by a related entity. ● Mr Jackson has not been underpaid by the related entity. ● On 4 April 2016, the Applicant held a discussion with Mr Mimmo Scavera. The discussion concerned, in part, the payment of overtime for hours worked over and above ordinary hours of work. ● Mr Scavera did not at any time threaten to reduce the Applicant’s remuneration or otherwise alter the position of the Applicant. Mr Scavera did not conduct himself in an intimidating way. ● The Applicant’s conditions of employment have not been altered, nor has any threat been made to alter those conditions. ● There has been no adverse action taken, or threatened, against the Applicant. [4] The respondent identified the correct employer of Mr Jackson as its related entity, Rothwell Mechanical Services Pty Ltd. [5] The respondent submitted to the Fair Work Commission (Commission) that the applicant had not been dismissed from its employ or that of its related entity . [6] I listed this application for conference. The respondent agreed to participate in the conference. The parties agreed that I should make a recommendation regarding the resolution of the dispute before me after receipt of written submissions. [7] Mr Jackson provided submissions on 11 May 2016. The respondent provided submissions dated and supplied on 23 May 2016. [8] Mr Jackson has made a workers compensation claim for the period he has been allegedly incapacitated for work as a result of the stress suffered by him arising from the conduct of Mr Scavera of the respondent. [9] In this application Mr Jackson also makes a claim for outstanding monies due to him because of an alleged underpayment of entitlements for overtime. [10] If it is accepted that Mr Jackson was assaulted or threatened by Mr Scavera, as a response to an enquiry regarding the terms and conditions of his employment, that conduct would amount to adverse action against Mr Jackson. [11] Mr Jackson has an outstanding workers compensation claim against the respondent, Thermal Mechanical Suppliers Pty Ltd, or a related entity, Rothwell Mechanical Services Pty Ltd. It is in his best interests to resolve that application as soon as possible. This is particularly so given the recent allegations concerning Mr Jackson’s return to work. [12] Because the identity of Mr Jackson’s employer is in dispute, consideration should be given to both entities being joined in the alternative as parties in any subsequent proceedings so that that issue can be resolved. [13] Mr Jackson has alleged an underpayment of wages, particularly overtime. He has provided payslips which he submits demonstrate that underpayment of overtime had occurred. [14] These are matters that should be notified to the Fair Work Ombudsman and/or concerning which, proceedings should be lodged for recovery. That issue cannot be determined in the Commission. [15] Involvement by the respondent in the current proceedings before the Commission is voluntary. The respondent denies an employment relationship with Mr Jackson. The respondent denies any underpayment. [16] The current proceedings cannot resolve these issues. I recommend that Mr Jackson should pursue any available remedy in relation to workers compensation or underpayment of wages elsewhere. SENIOR DEPUTY PRESIDENT Appearances : Mr P Rochfort of Rochforts Workplace Solutions on behalf of the Applicant Mr Luke Mitchell of Dooley & Associates on behalf of the Respondent Hearing details: 2016 Sydney 5 May Printed by authority of the Commonwealth Government Printer <Price code B, PR581309>