KAMARALDIN v Zana Decorating Pty Ltd

[2014] FCCA 1494

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAMARALDIN v ZANA DECORATING PTY LTD [2014] FCCA 1494

Catchwords:
INDUSTRIAL LAW – Ruling on Small Claim application. 

Legislation:  

Fair Work Act 2009, ss.541(3), 542(1), 548

Applicant: AHMAD KAMARALDIN

Respondent: ZANA DECORATING PTY LTD

File Number: MLG 175 of 2014

Judgment of: Judge Burchardt

Hearing date: 27 June 2014

Date of Last Submission: 27 June 2014

Delivered at: Melbourne

Delivered on: 27 June 2014

REPRESENTATION

The Applicant: In person (assisted by an interpreter)

The Respondent: No appearance

ORDERS

1. The Respondent is to pay the Applicant $5,000. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 175 of 2014

AHMAD KAMARALDIN

Applicant

And

ZANA DECORATING PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. These reasons for judgment will be transcribed and forwarded to the parties as soon as possible.  On 3 February 2014 the applicant filed a claim in the Small Claims procedure of this Court.  The Small Claim Form indicated that it was made against “Zana Decorating Pty Ltd”.  It asserted that the Classification level under the applicable Modern Award enterprise agreement workplace determination or contract was $27 per hour.  In the details of claim the applicant asserted:

   “APPLICANT WAS EMPLOYED AS A PAINTER AND COMPLETED ALL WORK REQUIREMENTS AND STIPULATED HOURS OF WORK.  THE EMPLOYER DID NOT PAY THE APPLICANT THE WAGE REQUIRED AND THEREFORE THE APPLICANT CEASED WORK.  THE APPLICANT HAS MADE NUMEROUS ATTEMPTS TO RESOLVE THE MATTER HOWEVER, THE RESPONDENT HAS NOT COMPLIED.”

2. The application annexed a Current Company Extract identifying an entity Zana Decorating Pty Ltd, the director of which is Zivko Jim Nikoloski.  Also annexed was a Workplace Complaint Form, which gave the name of the business owner as Mr Nikoloski and said under the “Details of the complaint” that the applicant worked for Zana Decorating as a painter between October 2012 and March 2013.  The applicant complained that payments by cheque would bounce and that he was owed $5,000. 

3. On 5 May 2014 I caused the applicant to file an affidavit of service, and that was filed on 13 May 2014.  On 19 May 2014 at a further directions hearing I changed the name of the respondent to the proper title of the company, Zana Decorating Pty Ltd.  I adjourned the matter for hearing today against the possibility that the respondent might participate in the proceeding. 

4. Consistently with what appears to be the history of the matter, the respondent has filed no materials and not attended today. This being a small claim, the Court under s.548 of the Fair Work Act 2009 (“FW Act”) is not bound by any rules of evidence and procedure and may act in an informal manner without regard to legal forms and technicalities.

5. I have before me, and I will cause it to be marked as exhibit A, a photocopy of a letter from the Commonwealth Bank dated 7 February 2013 returning to the applicant a cheque from the respondent for $3,000 and a dishonour notice. 

6. Today I have taken sworn evidence from the applicant.  He confirmed that he worked as a painter that he worked either as an employee or as a contractor.  The cheque for $3,000 represented part of what he was owed, and he was further owed two weeks wages at $200 per day, being a total, obviously of a further $2,000.  He confirmed that some $1,500 of his pay owing was as a subcontractor.  The applicant is not legally qualified and is clearly not fluent in English.  It is therefore very understandable that he has not been able to formulate his claim in a manner consistent with the legislation. 

7. It is, however, plain that the applicant would be governed by one or more of the National Employment Standards or a Modern Award or one or other of the matters set out in s.541(3) of the FW Act. He would also possibly come within the terms of s.542, subsection (1) of the FW Act. His complaint is not, however, formulated by reference to any Award rate of pay. It is formulated by reference to his common law contract. In my view, the Court plainly has jurisdiction to hear this claim because even though I do not have the relevant industrial instrument before me I am comfortably satisfied that the applicant’s work as a painter would be covered by such an instrument.

8. Whether the terms of s.542 are broad enough to encompass the applicant’s claim or not, I would plainly have jurisdiction under the Court’s accrued jurisdiction to entertain not only the claim for wages as an employee but also his claim as a subcontractor.  The parties are the same, and it is all part of the same single federal controversy.  So far as the contractual claim is concerned, I am satisfied that it is made out.  The dishonoured cheque is compelling evidence that the applicant is owed $3,000, and his sworn evidence, untested and uncontradicted, establishes that he is owed two more weeks wages at $1,000 per week. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  11 July 2014