MAKRIS v Chryssafis

[2014] FCCA 1920

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAKRIS v CHRYSSAFIS [2014] FCCA 1920

Catchwords:
INDUSTRIAL LAW – Proceedings under s.548 of the Fair Work Act 2009 (Cth) – failure to pay wages, allowances, annual leave, annual leave loading, public holidays, personal leave and superannuation under the Fair Work Act 2009 (Cth) and provisions of the Building and Construction General On-site Award 2010 [MA000020] – failure to keep proper records and to provide pay slips – contraventions found – compensation awarded – interest to judgment awarded.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 45, 90, 99, 116, 323(1)(a), 536(1), 545(2), 547(3)
Federal Circuit Court Rules 2001 (Cth)
Federal Court Rules 2011 (Cth)

Building and Construction General On-site Award 2010 [MA000020], cls.15, 19, 20, 21, 31, 32, 38, 39, 41, Schedule B, cl.B.2.1

Fair Work Ombudsman v Ramsey Food Processing Pty Ltd & Anor (2011) 198 FCR 174

Applicant: GEORGE MAKRIS

Respondent: BILL CHRYSSAFIS T/AS PANDELIS CHRYSSAFIS ABN 95 501 625 308

File Number: MLG 620 of 2014

Judgment of: Judge Whelan

Hearing date: 20 August 2014

Date of Last Submission: 20 August 2014

Delivered at: Melbourne

Delivered on: 29 August 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondent: Respondent in person

ORDERS

1. The Court declares that the Respondent contravened:

   (a)Section 44 of the Fair Work Act 2009 (Cth) (“the Act”) by breaching the provisions of ss.90(1), 90(2), 99 and 116 of the Act;

   (b)Section 323(1)(a) of the Act by failing to pay the Applicant’s wages, loading and allowances and leave payments in full in accordance with the Act and the Building and Construction General On-site Award 2010 [MA000020] (“the Award”) provisions;

   (c)Section 45 of the Act by breaching the following provisions of the Award:

   (i)Clause 15.2(a);

   (ii)Clauses 19.1(b);

   (iii)Clause 19.3(b);

   (iv)Clause 19.7;

   (v)Clause 20(b)(viii);

   (vi)Clause 20.1;

   (vii)Clauses 21.1;

   (viii)Clause 21.2;

   (ix)Clause 31;

   (x)Clause 32.2;

   (xi)Clause 38;

   (xii)Clause 39; and

   (xiii)Clause 41.

2. The Court orders that the Respondent pay to the Applicant:

   (a)In accordance with the provisions of s.545(2) of the Act, the sum of $8,979.06; plus

   (b)In accordance with the provisions of s.547(3) of the Act, interest to judgment of $628.53;

   (c)In accordance with the provisions of s.545(2) of the Act, by way of payment into a complying Superannuation Fund, the sum of $2,270.33; plus

   (d)In accordance with the provisions of s.547(3) of the Act, interest to judgment of $158.92.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 620 of 2014

GEORGE MAKRIS

Applicant

And

BILL CHRYSSAFIS T/AS PANDELIS CHRYSSAFIS

ABN 95 501 625 308

Respondent

REASONS FOR JUDGMENT

1. This is an application under s.548 of the Fair Work Act 2009 (Cth)

   
   

   (“the Act”) by MR GEORGE MAKRIS (“the Applicant”) in which he claims that MR BILL CHRYSSAFIS (“the Respondent”) failed to pay him the wages prescribed by the Building and Construction General On-site Award 2010 [MA000020] (“the Award”). The Applicant also claims various other breaches of the Award including the Respondent’s failure to:

   ·Pay personal leave for absences due to illness;

   ·Pay overtime;

   ·Pay annual leave and annual leave loading;

   ·Pay for Public Holidays;

   ·Reimburse the Applicant for safety boots purchased by him;

   ·Pay certain all-purpose allowances;

   ·Advise the Applicant where he was to work, causing him to lose a day’s pay;

   ·Pay superannuation contributions on behalf of the Applicant;

   ·Pay the Applicant’s wages on a weekly basis; and

   ·Provide the Applicant with the prescribed lunch breaks.[1]

   [1] Form 5 Small claim under the Fair Work Act 2009 filed by the Applicant on 3 April 2014.

2. The Applicant was employed by the Respondent from 2 July 2012 until 14 June 2013. The Respondent denies that the Applicant should have been paid from 2 July 2012 until 10 January 2013 as a

   
   

   Construction Worker level 1[2] and submits that, at all times between

   
   

   2 July 2012 and 14 June 2013, the Applicant was a

   
   

   First Year Apprentice. He also denies that the Applicant was not paid for overtime worked, for Public Holidays or for sick days, and denies that he was not provided with lunch breaks. The Respondent admits that the Applicant was not:

   ·Reimbursed for safety boots purchased by him;

   ·Paid on time; and

   ·Paid his annual leave and annual leave loading at the time, but an amount of $1,540.00 (the records suggest this was $1,538.94) was paid with respect to annual leave some six months after the Applicant’s employment ended.

   [2] Building and Construction General On-site Award 2010 [MA000020], Schedule B, cl.B.2.1.

3. The Respondent admitted that no superannuation payments were made on behalf of the Applicant. He admits that there were occasions when the Applicant did not work because he failed to notify him of the work site, but submitted that this was once or twice only.

4. The Applicant admitted that he was seeking an apprenticeship as a carpenter and that his brother told him that the Respondent was looking for an apprentice. He did not, however, enter into an apprenticeship agreement with the Respondent until January 2013. When the Applicant made a complaint to the Fair Work Ombudsman (“FWO”), the Fair Work Inspector (“FWI”) was of the view that, as the apprenticeship was not entered into until 11 January 2013, he was entitled to a labourer’s rate of pay up until that date.

5. The Respondent gave evidence that he had been told that the apprenticeship could be back-dated but that he had not taken any action to do this. He agreed that what he had been told by the

   
   

   Victorian Employers’ Chambers of Commerce and Industry was that the term of the apprenticeship could be shortened by the period during which the Applicant worked for the Respondent prior to entering into the apprenticeship.

6. The Applicant stated that he had never received a pay slip and that he was sometimes paid by direct payment into his bank account and sometimes in cash. He was never aware what period of time the wages covered as the payments were irregular. For part of the time, the Applicant kept a diary with the dates and hours during which he worked which he produced to the Court. From November 2012,

   
   

   the Respondent gave him a ‘red book’ in which he filled out his days, hours and the location of the job. He tore out the sheet at the end of each week and gave it to the Respondent. It was later returned to him. The Applicant produced a series of sheets headed ‘Wildon Time Record of Employees’ which were photocopies of these sheets.

   
   

   The Respondent agreed that the sheets prior to the end of 2012 were reconstructed from his records of when he worked with the Applicant and the records of others who worked with him. He assumed the same hours for the Applicant.

Conclusions

1. The Court was hampered in its determination of this matter by the failure of the Respondent to keep proper records of the hours worked by the Applicant and of the money paid to him. The failure to provide the Applicant with pay slips was also a breach of s.536(1) on the Act. The material before the Court was limited, consisting of a diary kept inconsistently by the Applicant during the second half of 2012 and

   
   

   time sheets, about half of which the Respondent stated were reconstructed after the event based on hours worked by others with whom the Applicant was working.

2. I am satisfied, however, that the Applicant was entitled to be paid:

   ·From 2 July 2012 and 1 October 2012, as a Construction Worker level 1(a); and

   ·

   From 2 October 2012 until 10 January 2013, as a

   
   

   Construction Worker level 1(b).

   Between 11 January 2013 and 14 June 2013, the Applicant’s correct classification was as a First Year Apprentice.

3. I am also satisfied that there were occasions when the Respondent did not notify the Applicant of where he was to work the following day, despite the Applicant attempting to contact him to find out that information. From the material before me, I am satisfied that the days claimed by the Applicant are consistent with the records, save that I accept that the Applicant did not make himself available for work between 28 January and 22 February 2013 because he was in dispute with the Respondent about the failure of the Respondent to pay him wages owing.

4. The Applicant attached a schedule to the Application which sets out how the amounts owing to him were calculated.[3] I accept those calculations, save for the days claimed between 28 January and

   
   

   22 February 2013. I also find that the sum of $1,538.94 paid on

   
   

   6 December 2013 was with respect to annual leave and annual leave loading and not wages. Taking into account the amounts paid to the Applicant, I am satisfied that the underpayment of wages amounted to $7,860.83. I am further satisfied that there was a failure to pay personal leave in the amount of $46.16 and a failure to pay Public Holidays in the amount of $546.92. Taking into account the amount of annual leave and annual leave loading with respect to both the Applicant’s Christmas holiday period and on termination of the employment, as well as the amount of $1,538.94 paid some six months after the employment ended, I am satisfied that there is an amount of $335.16 owing as annual leave. There is also an amount of $189.99 owed to the Applicant for the cost of his safety boots.

   [3] Form 5 Small claim under the Fair Work Act 2009 filed by the Applicant on 3 April 2014.

5. From the records, I am satisfied that the Applicant was paid the overtime he was entitled to be paid. There is insufficient evidence to establish if and/or when the Applicant was refused an appropriate meal break after five hours. I therefore make no finding on that issue.

6. The Respondent has admitted that no superannuation payments were made on the Applicant’s behalf during the employment. The amount owing is $2,270.33.

7. I am further satisfied that the Applicant is entitled to interest to judgment on the amounts owing. The Applicant has attempted to resolve these claims and sought the assistance of the FWO. Despite recommendations made by the FWI, payments were not made.

   
   

   The Applicant is a young man. He turned 18 on 27 November 2012.

   
   

   He was consistently underpaid and paid on an irregular basis from the commencement of his employment. In the absence of provisions in the Federal Circuit Court Rules 2001 (Cth) with respect to calculation of such interest, the Federal Court Rules 2011 (Cth) apply. In accordance with Practice Note CM 16 of 28 November 2008,[4] the applicable rate is the Reserve Bank of Australia cash rate plus 4%.

   [4] See Fair Work Ombudsman v Ramsey Food Processing Pty Ltd & Anor (2011) 198 FCR 174.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 29 August 2014