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[Extract from Queensland Government Industrial Gazette,

dated 16 September, 2005, Vol. 180, No.3, pages 156-157]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 – s. 278 – power to recover unpaid wages

Colin Atkinson AND Internal Health Group Pty Ltd t/a DJ’S Fitness Studio (No. W146 of 2004)

COMMISSIONER EDWARDS 6 September 2005

Application for Recovery of Unpaid Wages – Settlement Deed – Amended Application Rejected – Evidence – Order Determined.

DECISION

By application filed on 6 October 2004 Colin Atkinson (applicant) sought to recover unpaid wages and superannuation from DJ’S Fitness Studio. An amended application was filed on 27 January 2005 recording the employer as Internal Health Group Pty Ltd t/a DJ’S Fitness Studio (the respondent).

On 9 March 2005 the Commission released a decision on a threshold matter, 178 QGIG 272. During the hearing suggestions were made by the representative for the respondent that they were concerned about the Deed of Settlement (Deed) dated 24 May 2004. In view of the decision of 9 March 2005 the Commission relies on the Deed. Recital D of the Deed states:

“The parties have agreed to resolve the dispute and all claims between them relating to the Employee’s employment with the Employer except either party reserves the right to pursue any other statutory entitlement.”.

This Deed also provides that the applicant in this provision is Mr Colin Atkinson as the employee and refers to DJ’S Fitness Studio as the employer.

Schedule 1 of the amended application provides particular of the amounts payable as follows:

“1. Pro-Rata annual leave payable from 15th June 2003 to 15th December 2003,

Four weeks annual leave per annum. Two weeks pro-rata for the above

period, less three days taken and paid.

$1,450.60 x 2/10 = $290.12 Per Day x 7 days owing = $2,030.84

2. One Public Holiday 20th June 2003 Sunshine Coast Annual Show = $ 290.12

3.  Superannuation Contributions from 15th June 2003 to

15th December 2003, (26 weeks x $1,450.60) = $37,715.60 x 9% = $3,394.40

4. Notice; a) (4 weeks) $1,450.60 x 4 = $5,802.40 or

b) (1 week) $1,450.60 = $1,450.60

Submissions on contractual terms and Deed terms will

Clarify what is payable to the Applicant at Point 4.

TOTAL AMOUNT PAYABLE: Items (1 + 2 + 3 + 4 a) = $11,517.76

OR Items (1 + 2 + 3 + 4 b) = $ 7,165.96.”.

In submissions Mr Royce sought to amend the application to increase the monetary amount by an amount of $5,802.40. The respondent opposed the proposal.

The Commission rejects the proposal to amend the application.

The Deed provides that the amount to be paid to the applicant was $2,000.00, which was equivalent to two weeks’ pay. All wages are subject to tax irrespective of the applicable rate. As it has been determined that there was an employer/employee relationship the respondent is responsible for the payment of taxation.

In summary the Commission records:

·  the Deed is the document by which B69 of 2004 was settled at conciliation. Application B69 of 2004 was filed as a result of the dismissal and did not include any other claims;

·  this application W146 of 2004 provides for other claims;

·  the sum of $2,000.00 was the actual amount that the terms of the Deed provided; and

·  the Deed provided for an employer/employee relationship.

The applicant was employed as a manager not subject to the provisions of the Health and Fitness Centres, and Indoor Sports Award – South East Queensland 2003.

On consideration of all the submissions and evidence the Commission determines that the applicant as an employee is entitled to the following:

Net weekly income of $1000.00, using ATO, PAYG information – this equates to approximately $1,450.60 gross per week.

·  Pro rata annual leave payable from 15 June 2003 to 15 December 2003.

Four weeks annual leave per annum. Two weeks pro rata for the above period,

less three days taken and paid.

$1,450.60 x 2/10 = $290.12 per day x 7 days owing = $2,030.84

In accordance with s. 84 of the Industrial Relations Act 1999

a period of notice of one week.

·  1 week $1,450.60 = $1,450.60.

Furthermore, he would be entitled to superannuation contributions in accordance with the relevant legislative requirements

The Commission orders the amount of $3,481.44 be paid by Internal Health Group Pty Ltd t/a DJ’S Fitness Studio (ACN: 103 879 189) to Colin Atkinson within 22 days of the date of this decision. The superannuation payments are required to be paid as outlined above.

There is no order for costs.

The Commission orders accordingly.

K.L. EDWARDS, Commissioner.

Hearing Details:
2005 14 and 15 March
Released: 6 September 2005 / Appearances:
Mr S. Royce of Australian Industrial Reinstatement Services on behalf of the applicant.
Mr R. Dempsey of Dempsey Consulting and with him Mr F. Angus on behalf of the respondent.

Government Printer, Queensland

ÓThe State of Queensland 2005.