El Souki v Macushla Pty Ltd

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL SOUKI v MACUSHLA PTY LTD [2017] FCCA 591

Catchwords:
INDUSTRIAL LAW – Fair work – where Applicant claims underpayment of wages – no meal breaks – no payment of superannuation – no records kept by Respondent – factual determinations – adjourned as to quantification of monies owed to Applicant.

Legislation:

Fair Work Act 2009 (Cth), s.544

Applicant: JIHAD EL SOUKI

Respondent: MACUSHLA PTY LTD (T/A SUNNYTOP BAKERY CIABATTA DELLA NONNA) (A.C.N.: 83007075461)

File Number: MLG 1972 of 2015

Judgment of: Judge Hartnett

Hearing dates:

16 May 2016 &

11 October 2016

Date of last submission: 14 December 2016

Delivered at: Melbourne

Delivered on: 27 March 2017

REPRESENTATION

Solicitor for the Applicant: Mr Ibrahim

Solicitors for the Applicant: Madinah Legal

Counsel for the Respondent: Mr Aleksov

Solicitors for the Respondent: Lawcorp Lawyers

ORDERS

1. The proceedings are listed for further hearing on 3 May 2017 at 10.00am as to quantification of the monies owing by the Respondent to the Applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1972 of 2015

JIHAD EL SOUKI

Applicant

And

MACUSHLA PTY LTD (T/A SUNNYTOP BAKERY CIABATTA DELLA NONNA)

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court are an application made under the Fair Work Act 2009 (Cth) (‘the Fair Work Act’) for:

   1) underpayment of wages;

   2) meal break entitlements;

   3) non-payment of superannuation;

   4) misrepresentation of workplace rights;

   5) failure to provide payslips;

   6) contravention of a minimum wage order; and

   7) involvement in a contravention of a civil remedy provision.

2. The evidence before the Court is as follows:-

   a)for the Applicant, an affidavit of the Applicant affirmed 27 April 2016, and affidavits of Mr David Altobelli affirmed 27 April 2016, and Mr Mauro Troiani affirmed 27 April 2016.

   b)for the Respondent, an affidavit of Mr Ferdinando Iaconis, a director of the Respondent company, sworn 12 May 2016; and affidavits of Ms Nadia Sciolas sworn 12 May 2016, Ms Julia Monea sworn 12 May 2016, Mr Leo Faddoul sworn 15 May 2016, Mr Matthew Nesci affirmed 12 May 2016 and Mr John Cardassis sworn 14 May 2016.

   Each of the witnesses of the Applicant and Respondent were cross-examined as to their evidence save for Ms Sciolas and Ms Monea whose evidence was unchallenged. The Applicant gave evidence with the assistance of an interpreter in the Arabic and English languages.

3. The factual issues to be determined by the Court at this stage in the proceedings are as follows:-

   a)when the Applicant commenced working with the Respondent;

   b)what the Applicant’s days and hours of work were, including whether the Applicant worked on public holidays; and

   c)what the Applicant’s duties were, so as to determine the classification of the Applicant under the relevant award being firstly, the Bread Trade (Victoria) Award 1999 (‘the Bread Award’), followed by, from 22 July 2011, the Food, Beverage and Tobacco Manufacturing Award 2010 (‘the Food and Beverage Award’). The Applicant alleged as set out in Paragraph 7 of the Amended Statement of…