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  4. Skordou v CFMG Administration Pty Ltd - [2024] QCAT 236

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Skordou v CFMG Administration Pty Ltd[2024] QCAT 236

Skordou v CFMG Administration Pty Ltd[2024] QCAT 236

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Skordou & Anor v CFMG Administration Pty Ltd [2024] QCAT 236

PARTIES:

FOTIS SKORDOU

(applicant)

FTPS GROUP INVESTMENTS PTY LTD ACN 642 660 580

(applicant)

v

CFMG ADMINISTRATION PTY LTD ACN 162 103 602

(respondent)

APPLICATION NO/S:

Q613/23

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

9 May 2024

HEARING DATE:

9 May 2024

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

  1. The Respondent must within 14 days of today file with the Southport Registry and email to the Applicants:
    1. An indexed and paginated bundle of documents that are directly relevant to the issues raised by the Response.
    2. All affidavits or statutory declarations of evidence in chief of witnesses on which it wishes to rely in support of the Response.
  2. The Applicants must within 14 days after service of the documents referred to in Order 1 file with the Southport Registry and email to the Respondent:
    1. An indexed and paginated bundle of documents other than those already filed with the Application for minor debt that are directly relevant in rebuttal.
    2. All affidavits or statutory declarations of evidence in chief of witnesses on which they wish to rely in reply.
  3. I DIRECT the parties to confer without prejudice by telephone within 7 days thereafter to see if they can agree on terms of settlement and that they jointly file with the Southport Registry an Application for Consent Orders in the form published on the QCAT Website in the Forms section if terms of settlement are agreed.
  4. I DIRECT that the Southport Registry list the case for a hearing for a date not earlier than 60 days from today with an allowance of 2.5 hours for hearing.

CATCHWORDS:

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – APPLICATION FOR MINOR DEBT – where Applicants sue for unpaid commissions payable pursuant to employment agreement for real estate marketing and sale – whether contract wholly or partly in writing or oral or varied orally – where employment agreement in writing admitted by Respondent – where oral agreement or oral variation of agreement denied – where breach of employment contract duties alleged – where liability denied

EMPLOYMENT LAW – EFFECT OF INDUSTRIAL AWARDS, AGREEMENTS OR LEGISLATION ON EMPLOYMENT CONTRACT – JURISDICTION – GENERALLY – whether employment contract source of claims made – whether Fair Work Act 2009 (Cth) also source of entitlement – whether statute sole source of entitlement – whether claims made within Tribunal jurisdiction – whether Tribunal should exercise jurisdiction

Fair Work Act 2009 (Cth), s 12, s 26, s 323, s 539, s 545, s 548

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12

Byrne & Frew v Australian Airlines (1995) 185 CLR 410

Ervin v Smipat Pty Ltd trading as LJ Hooker Burleigh Heads [2013] QCATA 153

Ford v Thexton trading as Family Legal and Thexton Lawyers [2014] QCATA 180

JF Hodge Pty Ltd v Brown [2013] QCATA 36

Josephson v Walker [1914] 18 CLR 691

Mallinson v Scottish Investment Co Ltd (1920) 28 CLR 66

McGarry v Coates [2013] QCATA 32

True v Amalgamated Collieries of Western Australia Ltd (1940) 62 CLR 451

Wiechers v Sodexo Remote Sites [2012] QCAT 16

Workplace Ombudsman v Saya Cleaning Pty Ltd (No. 2) (2009) 179 IR 358

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Application - for minor debt

  1. [1]
    These are proceedings in an Application for minor debt filed on 13 December 2023.
  1. [2]
    Fotis Skordou is a director of FTPS Group Investments Pty Ltd (‘FTPS’). Both Applicants claim $11,911.63 plus interest plus bailiff service fee plus filing fee and ASIC Search fee for commissions owing by CFMG Administration Pty Ltd (‘CFMG’) to Mr Skordou payable to FTPS.

Jurisdiction

  1. [3]
    Jurisdiction is an essential prerequisite for all claims brought to this Tribunal.
  2. [4]
    Exercise of jurisdiction for a claim within jurisdiction is in the Tribunal’s discretion. It does not automatically follow.
  3. [5]
    Dr J R Forbes in McGarry v Coates [2013] QCATA 32 (‘McGarry’) at [6] eloquently explained the importance of ascertaining jurisdiction as follows.

It is clear that a court or tribunal may raise a fundamental question of jurisdiction of its own initiative – ex mero moto, as many authorities have it. Courts are bound to take judicial notice of the limits of their powers. Agreement, silence or acquiescence of parties cannot confer jurisdiction over a dispute that a tribunal is not empowered to decide. It would be highly undesirable, not to mention a waste of time and resources, to go through the motions of reaching a void decree, which a judgment debtor is free to ignore. Whether the want of jurisdiction appears immediately, or at a later stage the tribunal must “hold its hand”.[1]

Facts

Claim

  1. [6]
    By agreement in writing between the parties commencing on 14 September 2020, CFMG employed Mr Skordou as a sales agent and business development manager on salary plus commission to sell off-the-plan properties for it.
  2. [7]
    In terms of the employment agreement, the salary component was $85,000 per annum exclusive of statutory superannuation entitlements and commission on sales settled was agreed as follows –

0.5% of contract value paid on (sic) upon settlement land sales where the employee is the effective cause of the sale via 3rd party where total commissions or rebates do not exceed 2.5%

Reward and recognition program

  1. [8]
    Mr Skordou asserts that by subsequent oral agreement in or about February 2021 CFMG agreed henceforth to pay the remuneration and commission to FTPS rather than him and that 50% of commission due would be paid when a sale contract became unconditional with the balance payable at settlement.
  2. [9]
    He asserts by reference to conduct that CFMG by its management acted consistently with those arrangements for a time, but subsequently repudiated them.
  3. [10]
    Whether the oral agreement varied the original agreement which still subsisted or it was an entirely new agreement is presently moot and not something that I must decide at this stage of these proceedings.
  4. [11]
    Also unclear on the evidence presently filed in the proceeding is whether half the commission paid upon a contract becoming unconditional would be recoverable by CFMG if for any reason a settlement did not later occur.
  5. [12]
    Attached to the Application for minor debt are four pages of submissions by Mr Skordou dated 11 December 2023 and exhibits to which he refers.
  6. [13]
    Those submissions particularise the chronology of facts and matters upon which the application is based.
  7. [14]
    It is convenient here to refer to the exhibits accompanying the submissions.
  8. [15]
    Exhibit FS1 a letter of demand from his solicitors dated 16 August 2023 to CFMG stating the following.

We note your denial of the existence of the new agreement and your recent reliance upon the term contained in the Employment Contract. We further note that the Company, by way of statements made by you, claims that it is now entitled to recover the payments made at the “unconditional” marker, despite the fact that these payments were made in accordance with the new agreement and with your full knowledge.

In contrast to your demand, Mr Skordou has presented copious documents evidencing the existence of the new agreement. Many are in the form of emails from the Company’s Commercial Finance Manager Ms Philippa Bomba listing the payments made to Mr Skordou upon sales becoming unconditional. Invoicing shows that Mr Skordou was first paid the split commissions on 10 February 2021. We note that you were copied on a number of the emails in 2021. In other words, you were aware of the payments being made to Mr Skordou in accordance with your verbal agreement.

In another email from Ms Bomba, she apologises for paying Mr Skordou “twice on unconditional for Birchwood” and states she will adjust the duplicate payment “off the next week’s commissions owed”. Along with the invoicing emails, this clearly indicates that the agreement to pay “on unconditional” was ongoing.

As previously stated, there is sufficient evidence to demonstrate the existence of the new agreement whereby Mr Skordou was paid 50% of his commission upon a contract becoming unconditional. The payments were not made by mistake and do not constitute any type of overpayment, advance or loan.

Some of the contracts in which Mr Skordou was the effective cause of sale are still on foot and will attract the remaining 50% of commission upon settlement. We note your claim that some have been terminated however we are instructed that the termination was effected by the actions of the Company and opine that in those circumstances, our client is still entitled to the commission payments.

Additional unlawful deduction

We are instructed that in addition to the recent unlawful deductions made by the Company, an amount of $5,400 was unlawfully deducted from Mr Skordou’s pay in September and October 2021.

On that occasion, the Company accepted a contract at a lower price than what had been negotiated by Mr Skordou. He was then told the Company was going to deduct the difference and that if he didn’t accede to the deduction, his employment would be in jeaopardy.

As with the deductions associated with our client’s commission entitlements, it appears the Company would be unable to demonstrate that the $5,400 payment was made involuntarily or as a genuine mistake or error. In the circumstances, not only is the deduction unlawful, recovery would be unlikely.

Resolution

In any case, the deductions made by the Company to date are unlawful and must be returned to Mr Skordou.

Can you please ensure that he is reimbursed in the next pay cycle. Can you further ensure that no additional unlawful deductions are taken from our client’s pay.

Fair Work Ombudsman

Should the Company fail to repay Mr Skordou the amount deducted from his pay in the next pay cycle, we are instructed to make a complaint to the Office of the Fair Work Ombudsman.

  1. [16]
    Paragraph 22 on the last page of Mr Skordou’s submissions provides the breakdown of the claim as follows.
    1. $9,436.63 as particularised in Invoice 0192 plus interest of $171.63.
    2. $1,801.25 as particularised in Invoice 0193 plus interest of $31.58.
    3. $673.75 as particularised in Invoice 0194 plus interest of $9.27.
    4. $379.50 QCAT filing fee.
    5. Legal costs.
  2. [17]
    Exhibit FS 3 is a copy of Invoice 0192 dated 15 September 2023 for Land Marketing Consultancy Fees for various Lots at Pumicestone Pocket plus GST of 10%.
  3. [18]
    Exhibit FS 4 is a copy of Invoice 0193 dated 18 September 2023 for Land Marketing Consultancy Fees for a Lot at Acacia Village and a Lot at Arbourwood plus GST of 10%.
  4. [19]
    Exhibit FS 5 is a copy of Invoice 0194 dated 5 October 2023 for Land Marketing Consultancy Fee for a Lot at Pumicestone Pocket plus GST of 10%.
  5. [20]
    A Queensland Courts Interest Calculator Sheet accompanies each Exhibit stating the amount claimed for interest.
  6. [21]
    Exhibit FS 6 is the written Employment Agreement including Summary in which amongst other things the following entitlements of the employee are set out:
    1. 20 working days annual leave per annum.
    2. Long service leave as per legislative entitlements in the State in which the employee is employed at the date on which the employee becomes eligible for an entitlement.
    3. 10 days personal leave per annum for each 12-month period during the term of employment.
    4. Parental leave as per legislative entitlements.
    5. Compassionate leave of up to 2 days per annum or as otherwise agreed with the employer.
    6. The period of written notice of termination of employment by the employee during and after a probationary period depending on duration of employment calculated by reference to then current Government Legislative Standards for notice ranging between 1 week for employment of not more than 1 year and 4 weeks for employment of more than 5 years.
  7. [22]
    Relevantly for jurisdiction, none of those entitlements are claimed in these proceedings.
  8. [23]
    Clause 13 of the terms and conditions of the employment agreement provides that the agreement is governed by and construed in accordance with the laws of Queensland and the parties submit to the jurisdiction of the courts of Queensland and the Commonwealth of Australia.
  9. [24]
    Clause 16 is a no waiver clause in favour of the employer.

Response

  1. [25]
    The Response of CFMG is as follows.
    1. The Employment Agreement (Exhibit FS 6) is admitted.
    2. A statement in February 2021 along the lines of that asserted by Mr Skordou concerning payment of half of the agreed commission when a sale contract became unconditional with the balance to be paid at settlement was only made to “certain retail sales agents”.
    3. That statement was not made to Mr Skordou.
    4. No new agreement was entered into.
    5. The Employment Agreement was not varied, nor was Mr Skordou a party to any meeting or discussion to vary it.
    6. Where a varied agreement was entered into with a retail sales agent, it included a term that the retail sales agent repay pre-paid commission upon finance approval if the contract did not ultimately settle.
    7. Mr Skordou was not a retail sales agent. He was instead employed as a Business Development Manager.
    8. He had different duties to those of a retail sales agent.
    9. Mr Skordou breached those duties in that:
      1. (i)
        since at least 24 July 2023 he did not, as required by Clause 4(b)(iv) and (v) of the Employment Agreement, liaise with retail agents on stock control, pricing and availability, and monitor and manage third parties to settlement and reporting.
      2. (ii)
        invoices 192, 193 and 194 were issued by FTPS Group Investments Pty Ltd in the period September to October 2023 in circumstances where there was no agreement or obligation that they be paid.
      3. (iii)
        in relation to invoice 193 the contract for sale of Lot 78 Arbourwood has not settled so no entitlement to payment has yet arisen.
      4. (iv)
        the amounts claimed are not owed.
  2. [26]
    No point of jurisdiction is taken in the Response, notwithstanding that reference to the Fair Work Act 2009 (Cth) (‘the FWA’) appears both in it and in the letter of demand from Mr Skordou’s solicitors.
  3. [27]
    However, the Tribunal is not a court of pleading. Formal objection to jurisdiction is not essential and a failure to object does not confer jurisdiction where it otherwise is lacking.

Representation

  1. [28]
    CFMG subsequently filed an application for legal representation because of the factual and legal complexity of the dispute.
  2. [29]
    Solicitors for CFMG in submissions filed on 23 January 2023:
    1. noted that Mr Skordou’s material included reference to alleged contraventions of the FWA and a threatened complaint to the Office of the Fair Work Ombudsman.
    2. submitted that the factual matrix includes an application in the Supreme Court of Queensland to set aside a statutory demand.
  3. [30]
    In contemplation of an issue of jurisdiction arising that the parties had not themselves considered, on 31 January 2024 I ordered that:
    1. CFMG be legally represented in the proceeding and at mediation and all hearings.
    2. QCAT Registry return the file to an Adjudicator for review and directions after 20 February 2024 if the dispute was not resolved at mediation.
  4. [31]
    Mediation was unsuccessful.

Review

  1. [32]
    Mindful of the Tribunal’s duty to enquire about jurisdiction and with a view to potentially ending proceedings early, I ordered on 26 February 2024 that:
    1. the parties file and email each other their written submissions concerning whether the provisions of the FWA apply to the employment claim and whether the Tribunal has jurisdiction in the circumstances.
    2. QCAT Registry put the file before an Adjudicator after 11 March 2024 for review on the question of jurisdiction.
  2. [33]
    I now decide the question of jurisdiction on the papers.

Submissions

  1. [34]
    Mr Skordou and FTPS are unrepresented and have not filed submissions on jurisdiction.
  2. [35]
    I infer that they are content to abide the Tribunal’s decision but I acknowledge the bewildering complexity of the law in competing State and Federal jurisdictions in employment agreement disputes exemplified by what follows in these reasons.
  3. [36]
    Exemplifying the complexity, the Benchbook on General Protections published by the Fair Work Commission (‘the FWC’) itself runs to 191 pages in providing information to parties to assist in the preparation of material for matters before the Commission pursuant to the FWA.
  4. [37]
    CFMG by its solicitors has filed submissions.
  5. [38]
    In summary, they are as follows.
    1. Properly characterised, the claim is for amounts payable for the performance of work under an employment contract and should have been brought under section 323(1) of the FWA which obliges an employer to pay an employee in full, except as provided in section 324.
    2. Section 323(1) is a civil remedy provision.
    3. By section 539(2) of the FWA, the Federal Court is the court vested with jurisdiction for an application by an employee claiming the civil remedy.
    4. Section 545(1) of the FWA provides that the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) has a broad discretion to make appropriate orders for contravention of a civil remedy provision.
    5. Without limiting that power, section 545(2)(b) provides that orders that might be made include an order awarding compensation for loss that a person has suffered because of the contravention.
    6. Section 545(3)(a) and (b) provides that an eligible State or Territory court may order an employer to pay an employee an amount if satisfied the employer was required to pay the amount under the FWA or a fair work instrument and has contravened a civil remedy provision by failing to do so.
    7. By section 12 of the FWA, “eligible State or Territory court” is one of –
      1. (i)
        a District, County or Local Court;
      2. (ii)
        a Magistrates Court;
      3. (iii)
        the Industrial Relations Court of South Australia;
      4. (iv)
        the Industrial Court of New South Wales;
      5. (v)
        any other State or Territory court that is prescribed by the regulations.
    8. By section 548(1) of the FWA entitled “Plaintiffs may choose small claims procedure” proceedings are to be dealt with as small claims proceedings under the subsection if –
  1. a person applies for an order other than a pecuniary penalty order under Division 2 from a magistrates court or the Federal Circuit and Family Court of Australia (Division 2); and
  1. the order relates to an amount referred to in subsection (1A); and
  1. the person indicates in a manner prescribed by the regulations or by the rules of court that the person wants the small claims procedure to apply to the proceedings.
  1. By subsection (1A) of section 548, the amounts referred to in section 548(1) are as follows:
    1. (i)
      an amount that an employer was required to pay to, or on behalf of, an employee:
      1. under this Act or a fair work instrument; or
      2. because of a safety net contractual entitlement; or
      3. because of an entitlement of the employee arising under section 542(1).
  1. [39]
    CFMG submits that the Tribunal has no jurisdiction to adjudicate the dispute for the following reasons.

The position under the FWA is separately confirmed by the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Specifically, the definition of ‘minor civil dispute’ in Schedule 3 of the QCAT Act states that a claim mentioned in paragraph 1(a) (being a claim to recover a debt or liquidated demand of money up to a prescribed amount) does not include a claim under the Fair Work Act (Cth), section 539.

  1. [40]
    The shortcoming in the submissions is that they do not refer to Tribunal case precedent.
  2. [41]
    I am neither assisting nor running Mr Skordou’s case for him in saying that the quoted excerpt from McGarry with which I respectfully agree requires that I also consider relevant Tribunal case law.

Thexton

  1. [42]
    The decision in Ford v Thexton trading as Family Legal and Thexton Lawyers [2014] QCATA 180 (‘Thexton’) published some ten years ago remains a seminal case in this Tribunal on jurisdiction in claims for minor debt arising from employment agreements.
  2. [43]
    Judge Alexander Horneman-Wren SC, Deputy President of the Tribunal at that time, and the Honourable KA Cullinane QC, Judicial Member, in comprehensive joint judgment in Thexton held that whether the Tribunal has jurisdiction to adjudicate employment contract disputes depends upon the source of the entitlement claimed.
  3. [44]
    It is necessary that I quote extensively from their reasons for a full understanding.
  4. [45]
    Their Honours said the following.
    1. At [5], that -

It is equally important to bear in mind that not all claims made in respect of employment are the same. Nor do they, necessarily, have the same legal source. All arise because there is, or has been, a relationship of employment between the parties. However, the legal source of the entitlement claimed may be the contract, statute or both. In each case it is important to understand what is the true nature, and legal source, of the claimed entitlement. It is common for claims arising in respect of employment to be collectively called “wages claims”; but that terminology is prone to mislead and distracts attention from a consideration of the true nature of the claim.

  1. At [8], that the primary issue is whether the claim arising out of employment falls within the Tribunal’s minor civil dispute jurisdiction and, if not, the Tribunal will have no other jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to deal with the matter.
  2. At [10], that -

If the claim is for breach of contract, the Tribunal will only have jurisdiction if the claim is liquidated.

  1. At [11], that -

Many claims arising from employment are for debts or liquidated demands. A claim for wages already earned through service, but unpaid, is such a claim; perhaps the most common. This is so whether the wages are prescribed by award or by contract.

  1. At [12], that -

Where wages are prescribed by contract, the employee will be able to recover them by as a debt in a court, or a tribunal, of competent jurisdiction. This would include QCAT. Where, on the other hand, the wages are prescribed by an award or other instrument made pursuant to some statute, whether the wages are recoverable as a debt in any court or tribunal will depend upon whether the statute contains provisions prohibiting that course.[2]

  1. At [13], that often a contract of employment will not expressly provide for wages to be paid and the rate of wages payable may be fixed by an award which may also determine other entitlements payable as incidents of the employment relationship and that the High Court of Australia has said the following.

…. It is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide for additional benefits, but cannot derogate from the terms and conditions imposed by the award and … the award operates with statutory force to secure those terms and conditions.[3]

  1. At [14], that -

In such circumstances, the statutory right to the payment of wages (and to other conditions) fixed by award) is imported into the employment relationship. The employment relationship is contractual in its origin; but the entitlement to those award wages and other conditions remain statutory. It is the award which is the source of the entitlements, not the contract.[4]

  1. At [15], that -

Unpaid wages can be recovered as a statutory debt. Subject to any exclusion by a statute, such a debt may be recoverable in the minor civil dispute jurisdiction of the Tribunal. Here, the relevant statute is the FWA. Its terms must be considered carefully to determine whether recovery in the Tribunal is permissible.

  1. [46]
    After extensive consideration of prior Tribunal cases in disputes arising from employment agreements and the provisions of the FWA, their Honours at [32] to [38] in Thexton concluded that QCAT has no jurisdiction for claims for entitlements arising under that statute because the FWA does not confer jurisdiction on the Tribunal.
  2. [47]
    I respectfully agree with that conclusion.
  3. [48]
    Insofar as concerns claims under employment agreements not arising under the provisions of the FWA brought in QCAT, their Honours concluded as follows.
    1. At [40], that any such claim would first have to be truly a debt or a claim for a liquidated demand of money and that a claim that truly was for damages for breach of contract unless for liquidated damages would not satisfy those criteria and would therefore be beyond jurisdiction.
    2. At [41], that a claim for non-payment of wages payable under a contract for a period in respect of which service was provided would be, in terms of section 12 of the QCAT Act, a claim which was within jurisdiction unless excluded by any provisions of the FWA.
    3. At [49], that in so far as QCAT has jurisdiction in respect of claims arising from a contract of employment that satisfy the description of debts or liquidated demands for money, that jurisdiction is for the reasons set out in paragraphs [42] to [48] not excluded by s 26 of the FWA concerning it applying to the exclusion of all state and territory industrial laws.
    4. At [52], that claims for debts or liquidated demands arising from a contract of employment, but not the FWA or an instrument made under it, can be recovered in QCAT in its minor civil dispute jurisdiction. This would include claims for above award wages which were earned but unpaid.
    5. At [58] on the analysis of FWA provisions referred to in paragraphs [53] to [57], that –

The jurisdiction of QCAT to hear and determine claims arising under a contract of employment and which exceed entitlements under the FWA or instruments made under it is not affected by the operation of the FWA. But in every case that jurisdiction is dependant upon the claim being for a debt or liquidated demand of money.

  1. [49]
    Though granting leave to appeal, the Tribunal dismissed Mr Ford’s claim for lack of jurisdiction because:
    1. At [59], his claim for pay in lieu of notice was one for damages for breach of contract.
    2. At [62] to [63], though the parties had contractually agreed that 2 weeks’ notice would apply to the employment agreement, the entitlement was greater than that provided under the safety net contractual provisions of the NES applying to a National System Employer or Employee and did not make provision for payment of 2 weeks wages or any other sum in lieu of notice.
    3. Notice and payment in lieu of notice are not the same thing.
    4. At [64] to [65], that whilst ordinarily the starting point for calculating damages for wrongful dismissal will be the wages that otherwise would have been earned, that is not the ultimate measure of damages that might be recovered.
    5. For example, damages might also be awarded for the loss of opportunity and there is in any event an obligation upon the injured party to mitigate damages though costs associated with mitigation might also be awarded as damages on the authority of (footnoted) decisions referred to in the judgment.
    6. At [66] to [67], that a claim for damages unless liquidated can never be characterised as a claim for a debt or a liquidated demand of money, and therefore the damages were not recoverable in QCAT.
    7. At [68] to [69], that Mr Ford’s claim for annual leave arose under the NES in the FWA in circumstances where the employment contract was silent on the issue and it was therefore never recoverable other than as provided for in the FWA so QCAT had no jurisdiction.
    8. At [70] and for the reasons explained in [71] to [74], that Mr Ford’s claim for superannuation was also not a debt or liquidated demand of money recoverable in QCAT.
    9. Further at [75], that even when recoverable pursuant to an award or agreement the contributions are not able to be ordered to be paid to the employee: see Workplace Ombudsman v Saya Cleaning Pty Ltd (No. 2) (2009) 179 IR 358 at [6].
    10. Mr Ford was therefore not a relevant person within the meaning of that description in section 12 of the QCAT Act.
  2. [50]
    I add the following for completeness in the present case.
  3. [51]
    Though not dissenting from the outcomes in the following cases referred to in Thexton, their Honours disagreed with analysis of the test to be applied in determining whether QCAT has minor civil dispute jurisdiction in minor debt disputes arising from employment contracts in the decisions in McGarry, JF Hodge Pty Ltd v Brown [2013] QCATA 36, Wiechers v Sodexo Remote Sites [2012] QCAT 16 (‘Wiechers’), and Ervin v Smipat Pty Ltd trading as LJ Hooker Burleigh Heads [2013] QCATA 153 (‘Smipat’).
  4. [52]
    Wiechers and Smipat were decisions of a former Tribunal President and Deputy President respectively. As far as I know, divergence of judicial opinion in QCAT decisions on the correct test to be applied has not yet been finally settled by the Queensland Court of Appeal or the High Court of Australia.

Discussion

  1. [53]
    Applying the principles in Thexton to which I have referred, I find that the Applicants’ claim is within the minor civil dispute jurisdiction of the Tribunal because the claim is simply one for a debt or liquidated amount of money, that is - the sum of unpaid commissions payable pursuant to an employment agreement.
  2. [54]
    The employment agreement is the contract that is the source of the claim, not any of the statutory provisions of the FWA where wages are prescribed by an award or other instrument.
  3. [55]
    The jurisdictional exclusion of FWA claims in the definition of minor civil dispute in Schedule 3 of the QCAT Act is therefore not relevant. The contractual debt is either owing or not owing. The outcome will depend upon whether the Respondent makes out its defence. None of the characterisation problems that confronted Mr Ford in Thexton arise here.
  4. [56]
    I should add for completeness that I would not have exercised jurisdiction if some of the claims made in the present proceedings were solely contractually sourced and within jurisdiction but others arose pursuant to the provisions of the FWA for which the Tribunal lacks jurisdiction.
  5. [57]
    But that is not the case here.

Orders/Directions

  1. [58]
    The Orders and Directions are those set out at the beginning of this decision for the purpose of advancing the case to final hearing on the merits relatively quickly in a way that most efficiently utilises the Tribunal’s limited temporal and material resources.

Footnotes

[1]  Footnoted case references omitted.

[2]Mallinson v Scottish Investment Co Ltd (1920) 28 CLR 66 at 72; True v Amalgamated Collieries of Western Australia Ltd (1940) 62 CLR 451 at 455; Josephson v Walker [1914] 18 CLR 691 at 697; Byrne & Frew v Australian Airlines (1995) 185 CLR (‘Byrne & Frew’) 410 at 419.

[3] Byrne & Frew at 420 – 421 per Brennan CJ, Dawson and Toohey JJ.

[4]  Ibid, at 420.

Close

Editorial Notes

  • Published Case Name:

    Skordou & Anor v CFMG Administration Pty Ltd

  • Shortened Case Name:

    Skordou v CFMG Administration Pty Ltd

  • MNC:

    [2024] QCAT 236

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Alan Walsh

  • Date:

    09 May 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
1 citation
Jump To
Cite 1 - (1995) 185 CLR 410
Ervin v Smipat Pty Ltd t/as LJ Hooker Burleigh Heads [2013] QCATA 153
2 citations
Jump To
Cite 1 - [2013] QCATA 153
Cite 2 - [2013] QCATA 153
Ford v Thexton trading as Family Legal and Thexton Lawyers [2014] QCATA 180
2 citations
Jump To
Cite 1 - [2014] QCATA 180
Cite 2 - [2014] QCATA 180
J F Hodge Pty Ltd v Brown [2013] QCATA 36
2 citations
Jump To
Cite 1 - [2013] QCATA 36
Cite 2 - [2013] QCATA 36
Josephson v Walker (1914) 18 CLR 691
2 citations
Jump To
Cite 1 - (1914) 18 CLR 691
Cite 2 - (1914) 18 CLR 691
Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66
2 citations
Jump To
Cite 1 - (1920) 28 CLR 66
Cite 2 - (1920) 28 CLR 66
McGarry v Coates [2013] QCATA 32
2 citations
Jump To
Cite 1 - [2013] QCATA 32
Cite 2 - [2013] QCATA 32
True v Amalgamated Collieries of Western Australia Limited (1940) 62 CLR 451
2 citations
Jump To
Cite 1 - (1940) 62 CLR 451
Cite 2 - (1940) 62 CLR 451
Wiechers v Sodexo Remote Sites [2012] QCAT 16
2 citations
Jump To
Cite 1 - [2012] QCAT 16
Cite 2 - [2012] QCAT 16
Workplace Ombudsman v Saya Cleaning Pty Ltd (No.2) (2009) 179 IR 358
2 citations
Jump To
Cite 1 - (2009) 179 IR 358
Cite 2 - (2009) 179 IR 358

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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