FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dimkovski v Majorsite Property Group Pty Ltd [2024] FedCFamC2G 683
File number(s): MLG 2284 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 1 August 2024 Catchwords: INDUSTRIAL LAW – application for review of a registrar’s decision – small claims – application seeking order for compliance with order of the Fair Work Commission – consideration of underpayment claims – consideration of accessorial liability of the second respondent Legislation: Fair Work Act 2009 (Cth) ss 12, 44, 45, 90, 117, 323, 392, 405, 539, 545, 548, 550, 675
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256(1)
Superannuation Guarantee (Administration) Act 1992 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 13.06(e), 21.02, 21.04
Cases cited: Allesch v Maunz (2003) 203 CLR 172
Alvarez Nino v Kuksal [2022] FedCFamC2G 401
Devonshire v Magellan Powertronics Pty Ltd [2013] FMCA 207
EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134
Fair Work Ombudsman & Foot & Thai Massage [2021] FCA 1241
Fair Work Ombudsman v Devine Marine Group Ltd [2014] FCA 1365
Fair Work Ombudsman v Hu [2019] FCAFC 133
Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174
Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 14 May 2024 Place of hearing: Melbourne Solicitor for the Applicant: Mr Oski of United Workers Union Solicitor for the Respondents: Did not participate ORDERS
MLG 2284 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DIMCE DIMKOVSKI
Applicant
AND: MAJORSITE PROPERTY GROUP PTY LTD
First Respondent
YAHYA ATAY
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1.Pursuant to r 13.06(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) the hearing proceeded in the absence of the First and Second Respondent.
2.Pursuant to s 545 of the Fair Work Act 2009 (Cth), the First and Second Respondents are to jointly and severally pay to the Applicant compensation in the following amounts:
(a)$2,312.81, less applicable taxation, to be paid to the Applicant's nominated bank account;
(b)$76.03, to be paid to the Applicant’s nominated superannuation account; and
(c)$3,907.24, less applicable taxation, to be paid to the Applicant's nominated bank account.
3.Pursuant to s 547 of the Fair Work Act 2009 (Cth), the First and Second Respondents are to jointly and severally pay to the Applicant pre-judgment interest in the following amounts:
(a)$296.47 in respect of the amount the subject of Order 2(a) above, to be paid to the Applicant's nominated bank account;
(b)$9.75 in respect of the amount the subject of Order 2(b) above, to be paid to Applicant’s nominated superannuation account; and
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- Case
- [2024] FedCFamC2G 683
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the first respondent had contravened various sections of the Fair Work Act 2009 (Cth) by failing to pay penalty rates, annual leave, annual leave loading, notice of termination, and superannuation contributions to the applicant. The court was also required to determine whether the second respondent was liable for any accessorial penalties under the Fair Work Act. The applicant provided uncontested evidence to support his claims of underpayment and failure to receive entitlements as stipulated by the relevant award and legislation.
The court found that the applicant was indeed underpaid in several areas and that the first respondent had contravened multiple sections of the Fair Work Act. The court held that the applicant was entitled to penalty rates for work on weekends, annual leave loading, and superannuation contributions. Additionally, the court found that the first respondent failed to provide written notice of termination or payment in lieu of notice, which also amounted to an underpayment. The court concluded that the first respondent was liable for the underpayments and breaches of the Fair Work Act. However, the court did not find sufficient evidence to hold the second respondent liable for accessorial penalties.
The court ordered that the first respondent must pay the applicant the total amount of underpayments, including penalty rates, annual leave, annual leave loading, and notice of termination, amounting to $2119.72. The court also ordered that the first respondent must pay superannuation contributions for the period in question. The second respondent was found not liable for any accessorial penalties.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: JUDGE J
A review of the Court file indicates that the Review Application was lodged with the Court on 21 February 2024 but due to certain documents being attached, it was not accepted for filing on that date. For reasons not readily apparent from the Court file, the Review Application was ultimately not accepted for filing until 27 February 2024. In the circumstances where the Review Application was initially sought to be filed within time, I am satisfied it is appropriate to extend the time for filing to 27 February 2024.CONSIDERATIONUNDER PAYMENT CLAIMS The applicant’s uncontested evidence is that he was employed by the first respondent on a permanent part-time basis from 15 January 2022 until his dismissal on or around 17 November 2022. During his employment with the first respondent the applicant’s employment was covered by the Award. Penalty rates underpayment The applicant’s uncontested evidence is that from October 2022 until 13 November 2022 he worked from 11.00 am to 2.00 pm on Saturday and Sunday at the Union Square Brunswick Shopping Centre but was not paid the applicable hourly penalty rates provided for in clause 20 and Schedule B.1.2 of the Award. The applicant submits that as a consequence of the above:(a)he was underpaid in the amount of $464.64;(b)the first respondent contravened s 45 of the FW Act; and(c)the first respondent contravened s 323 of the FW Act.Annual leave and annual leave loading The applicant’s uncontested evidence is that at the time of his termination of employment he had 43.61537 hours of accrued but unused annual leave. His evidence is that he was not paid for this accrued but unused annual leave. The applicant submits that pursuant to clause 21.3.b of the Award he was entitled to 17.5% annual leave loading on accrued but untaken annual leave. On the evidence before the Court no annual leave loading was paid to the applicant upon termination of employment. The applicant submits that as a consequence of the above:(a)he was underpaid in the amount of $1395.69 for accrued but untaken annual leave;(b)he was underpaid in the amount of $244.45 for annual leave loading;(c)the first respondent contravened s 90(2) of the FW Act and thereby contravened s 44 of the FW Act; and(d)the first respondent contravened s 323 of the FW Act. Notice of termination The applicant’s uncontested evidence is that has was not provided with written notice of termination of employment or payment in lieu of notice of termination. The applicant submits that as a consequence of the above:(a)he was underpaid in the amount of $259.44;(b)the first respondent contravened s 117 of the FW Act and thereby contravened s 44 of the FW Act.Superannuation The applicant submits that pursuant to clause 18 of the Award and the Superannuation Guarantee (Administration) Act 1992 (Cth) he was entitled to superannuation contributions of 10.5% on all ordinary time earnings. The applicant’s uncontested evidence is that no superannuation contributions were made on behalf of the applicant by the first respondent.