Byrnes v Triostar Pty Ltd

[2013] FCCA 2365

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYRNES v TRIOSTAR PTY LTD & ANOR [2013] FCCA 2365

Catchwords:
INDUSTRIAL LAW – Application seeking wages and unpaid annual leave – alleged breach of General Retail Industry Award 2010 (Cth) regarding minimum weekly wages – alleged breach of s.90(2) of Fair Work Act 2009 (Cth) payment of annual leave on termination of employment – no appearance by respondents – relief granted.

Legislation:

Fair Work Act 2009 (Cth), ss.90, 548

General Retail Industry Award 2010 (Cth) cl.17
Fair Work Regulations 2009 (Cth) reg.4.01
Federal Circuit Court Rules 2001 (Cth) r.13.03C

Applicant: ANN MAREE BYRNES

First Respondent: TRIOSTAR PTY LTD

Second Respondent: METLEJ PTY LTD

File Number: SYG 2336 of 2013

Judgment of: Judge Nicholls

Hearing date: 4 December 2013

Date of Last Submission: 4 December 2013

Delivered at: Sydney

Delivered on: 4 December 2013

REPRESENTATION

Appearing for the Applicant: Mr M Worsley

Representing the Applicant: Shop, Distributive and Allied Employees’ Association NSW

Respondents: No Appearance

ORDERS

1. The first and second respondent contravened the Fair Work Act 2009 (Cth).

2. The second respondent pay the applicant the sum of $2,948.52 less tax within 28 days of the date of this order.

3. The first respondent pay the applicant the sum of $6,675.68 less tax within 28 days of the date of this order.

4. Within 10 days of the date of these orders, the applicant write to each of the respondents by letter, by registered post to their respective addresses for service, notifying each of the respondents of the orders made today and of Rule 16.05 of Federal Circuit Court Rules 2001 (Cth).

5. The first and second respondent pay the applicant’s cost incurred in the filing of this application within 28 days of the date of this order

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2336 of 2013

ANN MAREE BYRNES

Applicant

And

TRIOSTAR PTY LTD

First Respondent

METLEJ PTY LTD

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made on 1 October 2013 pursuant to the Fair Work Act 2009 (Cth) (“the Act”) seeking certain wages and annual leave said to be owing to the applicant by the respondents. The applicant is Ms A M Byrnes (“the applicant”).

2. I also have before me two affidavits of service of Mark Slater, licensed process server, both sworn on 24 October 2013, which set out evidence of documents served on each of the respondents, Triostar Pty Ltd and Metlej Pty Ltd. I granted leave for the affidavits to be read in Court. The affidavits reveal that the application to the Court and the “Form 5” filed in these proceedings and the orders made by the Court on 16 October 2013 were properly served on both respondents. Amongst other matters, the documents served make plain, on their face, that the application was set down for further directions before the Court today. [The time and place were provided]. I am, therefore, satisfied that service was effected as against both the respondents.

3. When the matter was called today there was no appearance by, or on behalf of, either of the respondents. Nor has anything been put before the Court to indicate that the respondents sought any adjournment, or to otherwise engage in these proceedings. On that basis I formed the view that it was appropriate to proceed to a hearing of the application pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

4. Before the Court today, Mr Worsley appeared for Ms Byrnes, and had been granted leave on an earlier occasion to appear in this matter pursuant to s.548(8) of the Act and reg.4.01(3) of the Fair Work Regulations 2009 (Cth).

5. Proceeding on the application, the “Form 5” that was tendered in evidence today and marked as the applicant’s exhibit, and on evidence given under oath by Mr Worsley, I am satisfied as to the following.

6. First, that the application comes within what can be described as the “small claims” jurisdiction in this Court. I refer here to s.548(2) of the Act. That is, the claim is for an amount under $20,000.

7. Second, I am satisfied that the applicant was employed by both respondents, separately, for the period 12 December 2007 to 11 March 2013 as a part-time Retail Employee, Level 1 under the General Retail Industry Award 2010 (Cth) (“the Modern Award”). I note that the employment with Triostar Pty Ltd was for the period as set out in “part F” of the attached statement to the application (Form 5), and the period of employment with Metlej Pty Ltd, is as also set out in “part F”.

8. The applicant alleges that the respondents separately, for each of the relevant periods of her employment, breached a term of a “Modern Award”, as it related to her employment as a part-time “Retail Employee”, Level 1, in Modern Award, in particular, cl.17 relating to “Minimum Weekly Wages”. This was done during and arising from her employment. Further, the applicant alleges that each respondent, as her employer, breached one of the “National Employment Standards”, being s.90(2) of the Act – “Payment of annual leave on termination of employment”.

9. The details of the applicant’s claim, are set out and described, first, in outline in Part I of Form 5, then in detail at Annexure A. I am satisfied on what is before the Court that the respondents did breach the relevant instruments, the Modern Award and the Act, as the applicant alleges, and having regard to the matters presented in Annexure A. In particular, in relation to the underpayment of wages, the rate that the applicant was paid, the amount that she was paid when compared to the “correct” rate, and “correct” amount for the weeks of her employment.

10. I find that the applicant was not paid the amount of wages, nor annual leave on termination of employment to which she was entitled having regard to the relevant instruments.

11. In all, the total sum that the applicant seeks is $9,742.20. Having regard to each of the periods of employment with the two respective employers, the applicant seeks an amount of $2,948.52 as against Metlej Pty Ltd as unpaid wages and annual leave payment, and $6,675.68 as against Triostar Pty Ltd for unpaid wages and annual leave payment.

12. It is appropriate in these circumstances that I make the orders as sought by the applicant. I will do so.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 January 2014