Blackman v Leppard
[2014] FCCA 1444
•7 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLACKMAN v LEPPARD | [2014] FCCA 1444 |
| Catchwords: INDUSTRIAL LAW – Small claim – underpayment of wages – possible contraventions relating to method of payment and provision of employee records and payslips – referral to Fair Work Ombudsman. |
| Legislation: Fair Work Act 2009 (Cth), ss.323, 548(3) |
| Fair Work Ombudsman v Proplas Industries Pty Ltd & Anor and Fair Work Ombusdman v Blacklight Investments Pty Ltd & Anor (No.3) [2012] FMCA 130 Logan-Scales v Leppard (2003) 83 WAIG 1665; [2003] WAIRC 08508 Simpson v Hodges [2007] NSWSC 1230 |
| Applicant: | MICHAEL DAMIEN BLACKMAN |
| Respondent: | BRENDAN RAYMOND LEPPARD |
| File Number: | PEG 40 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 7 July 2014 |
| Date of Last Submission: | 7 July 2014 |
| Delivered at: | Perth |
| Delivered on: | 7 July 2014 |
REPRESENTATION
| For the Applicant: | In person |
| For the Respondent: | No appearance |
ORDERS
The respondent pay the applicant unpaid wages in the sum of $2,937.00 by 21 July 2014.
No order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 40 of 2014
| MICHAEL DAMIEN BLACKMAN |
Applicant
And
| BRENDAN RAYMOND LEPPARD |
Respondent
REASONS FOR JUDGMENT
(Edited ex tempore Reasons for Judgment)
Mr Blackman has a claim in the small claims list under the Fair Work Act 2009 (Cth) (“FW Act”).
Mr Blackman claims $2,937 in unpaid wages from Mr Leppard who he alleges is his employer, and for whom he worked as a labourer – leading hand operating a machine to mulch plastic. Mr Blackman says he worked for Mr Leppard from 7 November 2013 to 27 December 2013.
Mr Blackman alleges he was to be paid $20 an hour as a casual employee, and has submitted calculations showing hours worked each week, which vary from 11.5, to 22, to 22.5, to 23 and up to 40 hours in some weeks, which multiplied by $20 an hour for the total of hours worked, less cash payments that Mr Blackman concedes were made, results in a balance of $2,937 owing. The Court has no reason to doubt Mr Blackman’s calculations, he having given evidence as to their correctness, and in circumstances where he was never provided with payslips and has only been paid in cash, when he was paid, and having regard to s.548(3) of the FW Act, the Court accepts Mr Blackman’s evidence as to the amount he is owed.
The Court notes that:
a)Mr Leppard was to file and serve a response by 27 March 2014; and
b)the matter was referred for mediation before a Registrar of this Court,
by orders made on 6 March 2014 by this Court.
No response has been filed by Mr Leppard. Mediation took place on 14 May 2014 at 10.15am. The Court Report of Listing shows no appearance by Mr Leppard. Mr Leppard is therefore clearly in default of the Court’s orders of 6 March 2014 under r.13.03A(2)(b)(iii) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).
Mr Leppard was not in attendance today. The matter was called outside of the Court.
In the above circumstances, the Court proposes to make an order under r.13.03B(2)(d) of the FCC Rules that Mr Leppard pay Mr Blackman unpaid wages in the sum of $2,937. In so doing, the Court notes that Mr Leppard is no stranger to industrial proceedings of this type: see Fair Work Ombudsman v Proplas Industries Pty Ltd & Anor and Fair Work Ombusdman v Blacklight Investments Pty Ltd & Anor (No.3) [2012] FMCA 130 (“Proplas Industries (No.3)”) in which Mr Leppard was the second respondent, and Logan-Scales v Leppard (2003) 83 WAIG 1665; [2003] WAIRC 08508.
Mr Blackman only sought orders for underpayment of wages. The facts to which he attests might also appear to indicate that there was:
a)a failure to pay an employee in accordance with s.323 of the FW Act; and
b)a failure to keep proper employment records, including payslips, in respect of an employee, and to provide payslips to an employee, in accordance with the relevant provisions of Part 3-4, Division 3 of the Fair Work Regulations 2009 (Cth),
by Mr Leppard, noting that in the latter respect, there are some similarities to the circumstances in Proplas Industries (No.3).
In the above circumstances, it appears to be plain on the face of it that there is a possible breach of the FW Act and FW Regulations, and given that those matters might constitute contraventions giving rise to a penalty, the Court considers it has a duty to ask the Principal Registrar of the Court to refer these Reasons for Judgment to the Fair Work Ombudsman for any action that the Fair Work Ombudsman determines appropriate: see Simpson v Hodges [2007] NSWSC 1230 at paras.266-268 per Hall J (and cases there referred to).
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 7 July 2014
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