Hall v Inter Management Group Pty Ltd

[2012] FMCA 728

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HALL v INTER MANAGEMENT GROUP PTY LTD [2012] FMCA 728

INDUSTRIAL LAW – Fair Work small claims – no appearance by the respondent – leave granted to the applicant to proceed ex parte – applicant entitled to unpaid annual leave and annual leave loading.

Road Transport (Long Distance Operations) Award 2010, cl.3.1, 4.1, Sch.A
Fair Work Act 2009 (Cth), ss.55, 56, 61, 90
Workplace Relations Act 1996 (Cth)
National Employment Standard

Applicant: JOHN HALL

Respondent: INTER MANAGEMENT GROUP PTY LTD (ACN 105 115 759)

File Number: SYG 1410 of 2012

Judgment of: Emmett FM

Hearing date: 2 August 2012

Date of Last Submission: 2 August 2012

Delivered at: Sydney

Delivered on: 2 August 2012

REPRESENTATION

The applicant appeared in person and was assisted by Mr Robertson from the office of the Fair Work Ombudsman

No appearance by or on behalf of the respondent

ORDERS

1. Leave be granted to the applicant to proceed with the application ex parte.

2. Judgment for the applicant in the sum of $4,844.02.

3. The proceeding before this Court, commenced by way of application filed on 27 June 2012, is otherwise dismissed.

NOTE A: The judgment sum is made up of unpaid annual leave of 154.28153 hours at $18.59 making a total of $2,868.17; and unpaid annual leave loading of $1,975.85.

NOTE B: The applicant read the affidavit of Jason Lam, affirmed 1 August 2012.

NOTE C: The applicant read his affidavit, affirmed 1 August 2012.

NOTE D: The relevant award is the Road Transport (Long Distance Operations) Award 2010, tendered by the applicant and marked Exhibit 2A.

NOTE E: The applicant was assisted by Mr Robertson, solicitor with the office of the Fair Work Ombudsman.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1410 of 2012

JOHN HALL

Applicant

And

INTER MANAGEMENT GROUP PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. By application filed on 8 June 2012 and “Form 5 Small claim under the Fair Work Act 2009 (Cth)” (“Form 5”) filed on the same date, the applicant claims sums in respect of unpaid annual leave and annual leave loading for the period of his employment with the respondent, 2 October 2008 to 16 September 2011.

2. The applicant sought leave at the commencement of the matter this morning to proceed with his claim ex parte. In support of that application, the applicant read the affidavit of Jason Lam, affirmed 1 August 2012, which deposes to the fact that Mr Lam posted by prepaid post a copy of the application and Form 5, to which I have referred above, to the registered office of the respondent. Annexed to Mr Lam’s affidavit is an Australia Post tracking certificate, indicating that the documents were delivered to the respondent on 5 July 2012. 

3. Mr Robertson, the solicitor from the office of the Fair Work Ombudsman who assisted the applicant at today’s hearing, tendered on behalf of the applicant a copy of an Express Post guaranteed next day delivery slip, identifying the tracking number. That document was marked Exhibit 1A. I note that Exhibit 1A is addressed to the respondent at the respondent’s address for service. 

4. Mr Lam gave sworn evidence that he wrote the address on Exhibit 1A and placed the application and the Form 5 to which I referred earlier in that envelope. In the circumstances, I accept that the application and the Form 5 were delivered to the applicant’s registered office at 12 Ash Road, Prestons, on 5 July 2012, by Australia Post. 

5. The documents having been delivered on 5 July 2012, I am satisfied that there has been sufficient time for the respondent to indicate whether or not the respondent intends to participate in the proceeding. There has been no communication received by the Court from the respondent indicating that the respondent does intend to participate. There has been no response or defence filed by the respondent in respect of this proceeding. In the circumstances, I am satisfied that it is appropriate that the matter proceed ex parte. 

6. In support of the substantive application for unpaid annual leave and annual leave loading during the relevant period, Mr Robertson read an affidavit of the applicant affirmed 1 August 2012. The applicant’s affidavit deposes that between 2 October 2008 and 16 September 2011, the applicant was employed as an interstate truck driver by the respondent, during which time he drove a truck with a gross combination mass of 46 tonnes, was 19 metres long, and consisted of a bogie drive prime mover and tri-axle drop-deck trailer with ramps. 

7. The applicant deposed that he did not have a written contract of employment and claimed that he was paid $18.59 per hour during the period of his employment. The applicant annexed to his affidavit copies of pay slips for the period of his employment. The applicant also deposed that, during the period of his employment, he took a total of 280 hours of annual leave in respect of which he was not paid annual leave loading. 

8. On behalf of the applicant, Mr Robertson tendered the Road Transport (Long Distance Operations) Award 2010 (“the Award”), which was marked Exhibit 2A. Mr Robertson took me to the relevant clauses of the Award and I am satisfied on the basis of those clauses that the Award is the relevant award in respect of the applicant’s employment. I note, in particular, cl.4.1, the definitional clauses of a “long distance operation” and “private transport industry” in clause 3.1, and Sch.A to the Award in respect of the classification structure of the vehicle driven by the applicant. 

9. On the basis of the evidence of the payslips annexed to the applicant’s affidavit, I am satisfied that the applicant was employed on the basis of an annual salary of $38,667.20 at an hourly rate of $18.59. In the circumstances, I am satisfied that the applicant worked a 40 hour week during a 52 week period on the basis of those figures. Upon his termination, pursuant to s.90 of the Fair Work Act 2009 (Cth), the applicant was entitled to be paid the amount of annual leave that would have been payable to him had he taken that period of leave.

10. Mr Robertson has taken me to the relevant provisions in the Workplace Relations Act 1996 (Cth), the National Employment Standard and the Fair Work Act 2009 (Cth). I am satisfied that on the basis of those statutory entitlements the applicant was entitled to four weeks annual leave per year. I accept the evidence of Mr Hall that over the period of his employment he took 280 hours of annual leave. I am further satisfied that the annual leave to which Mr Hall was entitled for the period of his employment was 434.3 hours.

11. In the circumstances, I am satisfied that Mr Hall was not paid annual leave in respect of 154.3 hours. I note that the most recent payslip annexed to Mr Hall’s affidavit indicates that he was continuing to receive a pay rate of $18.59 an hour, and multiplying that by the number of hours of unpaid accrued annual leave, I am satisfied that judgment ought be entered for Mr Hall in the sum of $2,868.17 in respect of unpaid leave. 

12. Mr Hall also claims that he is entitled to and was not paid annual leave loading in respect of both the leave that he took as well as his accrued leave. 

13. Mr Robertson also took me to the relevant legislation in relation to the obligation of the respondent to pay a leave loading. I am satisfied on the basis of the legislation to which Mr Robertson has taken me that leave loading was due and payable to the applicant on the annual leave taken by Mr Hall and on the accrued leave. I note in particular that although the Award in Exhibit 2A states that “a leave loading will not apply to proportionate leave upon termination”, that ss.55, 56 and 61 of the Fair Work Act 2009 (Cth) make clear that the entitlement to leave loading cannot be excluded by a modern award.

14. In the circumstances, I am satisfied that Mr Hall was entitled to 30 per cent leave loading on the 200 hours of annual leave which he took after 1 January 2010, being a calculation of 200 hours times his hourly rate of $18.59 times 30 per cent, make a total of $1,115.40. I am also satisfied that Mr Hall was entitled to annual leave loading on his accrued annual leave, being a total of 154.3 hours. Those hours multiplied by his hourly rate of $18.59 times 30 per cent is a total of $860.45. In the circumstances, I accept that the total annual leave loading to which Mr Hall is entitled is $1,975.85. In the circumstances, there should be judgment for Mr Hall in that further amount of $1,975.85. 

15. Accordingly, judgment should be entered for the applicant in the total amount of $4,844.02.  

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  17 August 2012