MA v Australian Super Star Industrial Pty Ltd

[2003] FCA 1182

FEDERAL COURT OF AUSTRALIA

Ma v Australian Super Star Industrial Pty Ltd & Anor [2003] FCA 1182

SHIJU MA v AUSTRALIAN SUPER STAR INDUSTRIAL PTY LTD and GOLDEN INSIGNIA PTY LTD

V 514 OF 2003

NORTH J
28 JULY 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V514 OF 2003

BETWEEN:

SHIJU MA
APPLICANT

AND:

AUSTRALIA SUPER STAR INDUSTRIAL PTY LTD
FIRST RESPONDENT

GOLDEN INSIGNIA PTY LTD
SECOND RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

28 JULY 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.Judgment for the applicant against the respondents in the sum of $3150 being the amount ordered to be paid by the AIRC on 5 May 2003, plus interest fixed at $300 to the date of judgment,

2.Judgment for the applicant against the respondents in the sum of $4141.08 being for annual leave together with $400 interest fixed to the date of judgment.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V514 OF 2003

BETWEEN:

SHIJU MA
APPLICANT

AND:

AUSTRALIA SUPER STAR INDUSTRIAL PTY LTD
FIRST RESPONDENT

GOLDEN INSIGNIA PTY LTD
SECOND RESPONDENT

JUDGE:	NORTH J
DATE:	28 JULY 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Mr Shiju Ma, the applicant, filed an application on 7 July 2003 against Australia Super Star Industrial Pty Ltd and Golden Insignia Pty Ltd, the respondents.  He seeks to enforce an order of the Australian Industrial Relations Commission (the Commission) made on 5 May 2003 for the payment of $3,150, and he claims a further $4,140 in unpaid annual leave.

2. The applicant worked for the two respondent companies from 10 August 1999 until 18 August 2002 as a manager.  One company operates supermarkets and the other is a property development company.  Both companies have the same two directors.  The applicant was employed under an oral contract as a full-time employee and was paid an hourly rate.

3. The respondents were called at the hearing, but did not appear.  The applicant gave evidence of his efforts to serve the respondents with the application and affidavit in support.  He made a number of unsuccessful attempts at service at the residential address of the two directors of the respondents.  He then sent a copy of the application and the affidavit to that address.  The application indicated the date and time of hearing of this matter.  I am satisfied from the applicant’s evidence that the respondents received notice of the proceedings. 

4. In relation to the claim for $3150, the applicant relies on s 179 of the Workplace Relations Act 1996 (Cth) which states:

   “179(1)  [Time limitation]  Where an employer is required by an award, order or certified agreement to pay an amount to an employee, the employee may, not later than 6 years after the employer was required to make the payment to the employee under the award, order or agreement, sue for the amount of the payment in the Court or in any court of competent jurisdiction.”

5. In oral evidence, the applicant explained that the amount of $3,150 was awarded by the Commission for unfair dismissal and represented four and a half weeks wages.  He provided to the Court a copy of the orders made by Commissioner Simmonds. The orders require $3150 to be paid within 14 days of the order.  The order was made on 5 May 2003  The applicant deposed in affidavit evidence, and repeated in oral evidence, that that amount has not been paid.  On that basis, I am satisfied that the order was made and that the respondents have not paid the amount due.  There will therefore be judgment for the applicant for $3150 together with interest fixed to the date of judgment in the sum of $300.

6. I am also satisfied on the evidence that the claim for annual leave has been made out.  The applicant worked for three years and nine days for the respondents.  At the date of termination he was paid at the hourly rate of $19.60.  Pursuant to his contract of employment, he had an entitlement of 60 days of annual leave and took 33.59 days.  He was, therefore, entitled to payment on termination for 26.41 days.  At the rate of $19.60 an hour, he was entitled to $4141.08.  The applicant’s claim includes payment for 14 days which he says was a period of leave that he was forced to take by the employer.  I accept that this was the case, and that, therefore, the 14 days should not be regarded properly as annual leave.  There will be judgment for the applicant for $4141.08 together with $400 interest fixed to the date of judgment.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             24 October 2003

Counsel for the Applicant:	Appeared in person
Counsel for the Respondent:	No appearance
Date of Hearing:	28 July 2003
Date of Judgment:	28 July 2003