Lebot v Energetic IT Pty Ltd
[2011] FMCA 755
•29 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEBOT v ENERGETIC IT PTY LTD | [2011] FMCA 755 |
| INDUSTRIAL LAW – Small claim – unpaid wages and allowances. |
| PRACTICE AND PROCEDURE – Small claim – nature of claim – evidence. |
| Business Equipment Award 2010 cll.20.2, 22.1, 25.1, 25.2, 25.4, Schedule B cl.B.1.4, B.1.5 Fair Work Act 2009 (Cth) ss.12, 139(1), 548 Federal Magistrates Court Rules 2001 (Cth), r.45.11 Fair Work Regulations 2009 (Cth) |
| Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing And Allied Services Union of Australia v CJ Manfield Pty Ltd (2011) 63 AILR 101-370; [2011] FMCA 374 Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 Re Communication Workers’ Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246 |
| Applicant: | JULIEN LEBOT |
| First Respondent: | ENERGETIC IT PTY LTD |
| File Number: | PEG 230 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 29 September 2011 |
| Date of Last Submission: | 29 September 2011 |
| Delivered at: | Perth |
| Delivered on: | 29 September 2011 |
REPRESENTATION
| For the Applicant: | In Person |
| For the Respondent: | No appearance |
ORDERS
That the respondent pay the applicant the sum of $3302.50 by 27 October 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 230 of 2011
| JULIEN LEBOT |
Applicant
And
| ENERGETIC IT PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons edited and amended)
Introduction
This is an application by the applicant, Mr Lebot made under s.548 of the Fair Work Act 2009 (Cth),[1] in small claims proceedings in this Court against his previous employer, Energetic IT Pty Ltd,[2] seeking an order for payment of unpaid wages and allowances, totalling $3302.50.
[1] “FW Act”.
[2] “Energetic IT”.
The Court is satisfied that the application was served on the respondent, who did not appear in these proceedings. Mr Lebot swore an affidavit of service, and although it did not specify what documents were served, when Mr Lebot gave evidence he indicated that the application, claim Form 5 and a copy of the Court’s Order of 6 September 2011 were all served by registered post on Energetic IT, in accordance with the terms of the Order of 6 September 2011.
Having regard to the evidence of Mr Lebot the Court is also satisfied that he was employed by Energetic IT.
Small claims jurisdiction – basis for amount
Section 548 of the FW Act relevantly provides as follows:
(1) Proceedings are to be dealt with as small claims proceedings under this section if:
(a) …
(b) the order relates to an amount referred to in subsection (1A); and
(c) …
(1A) The amounts are as follows:
(a) an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b) …
The claim for wages and allowances in this case concerns an amount that the employer, Energetic IT, would, in the event of proven entitlement, be required to pay because:
a)it is an entitlement under a “fair work instrument”,[3] namely a “modern award”,[4] in this case the Business Equipment Award 2010;[5]
b)it is a “safety net contractual entitlement”[6], the wages and allowances being “an entitlement under a contract between an employee [Mr Lebot] and employer [Energetic IT] that relates to … the subject matter discussed in … sub-section 139(1)”[7] of the FW Act;
c)the payment of wages “relates to” the subject matter of “minimum wages” in s.139(1)(a) of the FW Act; and
d)allowances “relates to” the subject matter of “allowances” in s.139(1)(g) of the FW Act.
[3] FW Act, s.548(1A)(a)(i), and see definition of “fair work instrument” in FW Act, s.12.
[4] As defined in FW Act, s.12.
[5] “Award”.
[6] FW Act, s.548(1A)(a)(ii).
[7] FW Act, s.12 – definition of “safety net contractual entitlement”.
Small claims jurisdiction – limitation
Under s.548(2) of the FW Act and r.45.11(1) of the Federal Magistrates Court Rules 2001 (Cth)[8], the Court may not, in small claims proceedings, award more than $20,000, or a higher amount prescribed by the Fair Work Regulations 2009 (Cth).[9] At this stage there is no such amount prescribed by the FW Regulations. As set out in more detail below, Mr Lebot’s claim does not exceed the $20,000 limit.
[8] “FMC Rules”.
[9] “FW Regulations”.
Small claims jurisdiction – practice and procedure
Section 548(3) of the FW Act provides as follows:
Procedure
(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
Rule 45.11(2) of the FMC Rules provides as follows:
(2) The Court is not bound by any rules of evidence and procedure when dealing with a small claims application and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
Although the Court is not bound by the rules of evidence, and may act informally and without regard to legal forms and technicalities in small claims proceedings in the Fair Work Division, this does not relieve an applicant from the necessity to prove the claim. The Court can only act on evidence having a rational probative force.[10] For that reason the Court had Mr Lebot give evidence which confirmed the detail of his claim as it appeared in the Form 5 claim form, plus other details which the Court considered it necessary to enquire about.
[10] Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492 per Brennan J; Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 67-68 per Deane J (with whom Evatt J agreed at 57); Re Communication Workers’ Union of Australia Postal and Telecommunications Branch, New South Wales (1996) 67 IR 246 at 275 per Moore J.
Mr Lebot was employed at Energetic IT on a casual basis, working irregular hours, during the period 2 May 2010 to 4 July 2010.
Mr Lebot states that he was employed as a computer technician to uninstall outdated computer equipment, install new computer systems and software, and assist bank staff with the procedure, and was required to travel to selected Commonwealth Bank branches throughout Western Australia, including Moora, Geraldton, Port Hedland and Broome. Mr Lebot performed these duties as part of a team, although he was not ever a team leader. The description of the duties fits those of the classifications in the Award for a Level 4 or Level 5 technician,[11] and therefore Mr Lebot would have been entitled under clause 20.2(a)(i) of the Award to be paid $637.60 per week under level 4, and $678.20 per week under level 5, for a 38 hour week. His agreed hourly contractual rate was however higher, and he has claimed $20 an hour as his entitlement under his contract of employment, in addition to the minimum Award entitlement. Whilst the Award applies to Mr Lebot’s employment as a matter of law, it only provides minimum rates and entitlements, and there is, generally, nothing to prevent a contractual entitlement being made at an over-Award rate to an employee whose employment is subject to the Award.[12]
[11] Award, Schedule B cl.B.1.4 and B.1.5
[12] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing And Allied Services Union of Australia v CJ Manfield Pty Ltd (2011) 63 AILR 101-370; [2011] FMCA 374 at para.22 per Lucev FM.
Mr Lebot alleges that Energetic IT has breached clauses 25.1, 25.2(a), 25.2(b), 25.4 and 22.1 of the Award, the terms of which need not be set out, as the actual claim is that he has not been paid for 88 hours worked at the rate of $20 an hour, that is a contractual rate above the Award rate.
On the basis of the evidence the Court is satisfied that Mr Lebot has not been paid for 88 hours that he worked during the period of his employment at Energetic IT, and that he was employed on a rate of $20 an hour under his contract of employment. He is therefore entitled to the sum of $1760 which he has not been paid.
Clause 22.1(g)(ii) of the Award provides for certain area allowances not to be payable where an employer provides an employee with accommodation or other similar benefit of at least an amount equivalent to that prescribed for the relevant area, which includes the areas to which Mr Lebot travelled as set out above. Mr Lebot gave evidence that there was a contractual arrangement that he would be paid reasonable expenses actually incurred in connection with the employer’s business, as authorised by the employer and properly paid by the employee. Thus, he was not entitled to a living-away-from-home allowance under the provisions of s.22.1(h) of the Award.
Mr Lebot’s was a contractual entitlement to the sum which he expended on accommodation, meals and ancillary expenses in the amount that he claimed, namely $1075.50 for the first week of travel and $467 for the second week of travel. Once again, the minimum Award entitlement has been displaced by a higher entitlement under the contract of employment.
There will be orders accordingly.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 29 September 2011
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