McDonald v Il Migliore Pty Ltd

[2013] FCCA 1540

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCDONALD v IL MIGLIORE PTY LTD & ANOR [2013] FCCA 1540

Catchwords:
INDUSTRIAL LAW – Small claims procedure – contraventions found – compensation awarded.

Legislation:

Fair Work Act 2009, ss.45, 545(2), 547(2), 548

Fair Work Regulations 2009
Workplace Relations Act 1996, s.182
Biscuit (Victoria) Award 1998 [AP769690]
Food, Beverage and Tobacco Manufacturing Award 2010 [MA000073]

Cases cited:
Il Migliore Pty Ltd t/a Il Migliore v McDonald [2013] FWCFB 5759

Applicant: KELLY MCDONALD

First Respondent: IL MIGLIORE PTY LTD

Second Respondent: PAULA LINDSAY

File Number: MLG 745 of 2013

Judgment of: Judge Whelan

Hearing date: 20 September 2013

Date of Last Submission: 20 September 2013

Delivered at: Melbourne

Delivered on: 20 September 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: No appearance on behalf of the First Respondent

Counsel for the Second Respondent: No appearance on behalf of the Second Respondent

THE COURT DECLARES THAT:

1. The Respondents contravened s.182 of the Workplace Relations Act 1996 (Cth) and clause 22 of the Biscuit (Victoria) Act 1998 by failing to pay the Applicant the minimum casual rate for ordinary hours in accordance with the Australia Pay and Conditions Scale and by failing to pay the overtime penalty rate.

2. The Respondents contravened s.45 of the Fair Work Act 2009 (Cth) and:

   (a)Clauses 13.1, 20.1(a) and Schedule A of the Food, Beverage and Tobacco Manufacturing Award 2010 by failing to pay the Applicant the minimum hourly casual rate; and

   (b)Clause 33.1(a) and Schedule A of that Award by failing to pay the Applicant the applicable overtime rate.

THE COURT ORDERS THAT:

1. In accordance with s.545(2) of the Fair Work Act 2009 (Cth), the Respondents forthwith pay the Applicant the sum of $15,235.65

   
   

   (“the sum”).

2. Pursuant to s.547(3) of the Fair Work Act 2009 (Cth), the Respondents pay the Applicant interest calculated at the rate of 6.5% on the sum, being $1,795.17, with such interest to be paid concurrently with the sum referred to in Order 3 herein.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 745 of 2013

KELLY MCDONALD

Applicant

And

IL MIGLIORE PTY LTD

First Respondent

PAULA LINDSAY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application under the Small Claims Provisions of the

   
   Fair Work Act 2009

   (Cth) (“the Act”) by the Applicant,

   
   

   Ms Kelly McDonald (“the Applicant”).

2. The Court has received correspondence from a Mr TOM BARKER (“Mr Barker”) who purports to represent the First and Second Respondents, IL MIGLIORE PTY LTD (“the company”) and

   
   

   Ms PAULA LINDSAY (“Ms Lindsay”) (collectively

   
   

   “the Respondents”). Mr Barker does not appear to be a legal practitioner nor is he a director of the company.

3. Mr Barker sought an adjournment of the proceedings on three grounds:

   ·Ms Lindsay would not be in Victoria on 20 September 2013;

   ·Ms Lindsay’s father died on 10 September 2013; and

   ·Ms Lindsay has been suffering from post-viral fatigue for over four months.

4. I accept that Ms Lindsay’s father died on 10 September 2013. That is not, in my view, a reason for adjourning these proceedings. Indeed, it would appear from an email dated 16 September 2013 that Ms Lindsay will be in Port Douglas from 20 September to 26 September 2013. There is no medical evidence produced to show that Ms Lindsay is unable to attend Court. Ms Lindsay has chosen to take an interstate holiday rather than defend these proceedings. The Applicant opposes the adjournment and points to the length of time she has sought to have her claim dealt with.

5. I am not satisfied that these proceedings should be adjourned and I will therefore proceed to deal with the application.

6. The Applicant worked for the Respondents in various roles between

   
   

   27 September 2007 and 17 February 2012. The Applicant made a complaint to the Fair Work Ombudsman (“the Ombudsman”) on

   
   

   11 July 2012 concerning underpayment of the minimum hourly rate and non-payment of overtime rates. The Applicant produced correspondence from the Ombudsman with respect to her complaint.

7. That correspondence states:

   ·From 27 September 2007 to 31 December 2009, the Applicant’s employment was governed by:

   ·the Biscuit (Victoria) Award 1998 [AP769690] (“the Award”);

   ·the Workplace Relations Act 1996; and

   ·the Australian Pay and Classification Scale (“the Pay Scale”),

   with respect to her rate of pay;

   ·From 1 January 2010 to 30 June 2010, the Applicant’s employment was governed by:

   ·the Act;

   ·the Fair Work Regulations 2009 (“the Regulations”);

   ·the Food, Beverage and Tobacco Manufacturing Award 2010 [MA000073] (“the FBTM Award”); and

   ·

   the Transitional Australian Pay and Conditions Scale

   
   

   (“the Transitional Pay Scale”).

   ·From 1 July 2010, the Applicant’s employment was governed by:

   ·the Act;

   ·the Regulations; and

   ·the FBTM Award.

8. The Ombudsman’s investigation found that the Applicant had not been paid the minimum casual rates for ordinary hours in accordance with the Pay Scale derived from the Award or the overtime penalty rates under cl.22 of the Award. Further, the Applicant had not been paid the casual rate of pay under cls.13.1, 20.1(a) and Schedule A of the

   
   

   FBTM Award, or the overtime rates provided by cl.33.1(a) of the FBTM Award.

9. With the assistance of the Ombudsman, the Applicant has calculated a total underpayment of $15,235.65 based on the relevant classification rates and hours of work performed.

10. The calculation of that amount is set out in a spread sheet attached to the Application.[1]

    [1] Form 5 - Small Claim under the Fair Work Act 2009 filed by the Applicant on 28 May 2013, at Attachment B.

11. The Applicant has also provided copies of transcript and statements which were in evidence before the Fair Work Commission in separate proceedings taken in that Tribunal.[2] I have also had the benefit of reading the decision of the Full Bench of the Fair Work Commission in Il Migliore Pty Ltd t/a Il Migliore v McDonald [2013] FWCFB 5759.

    [2] Ibid, at Attachments D-J.

12. From the material before the Court, I am satisfied that the Applicant was employed by the Respondents as a casual employee from

    
    

    27 September 2007 to 17 February 2012. The Applicant was variously employed as a:

    ·Baker from 27 September 2007 to 15 January 2009;

    ·Kitchen Supervisor from 16 February 2009 to 3 October 2010; and

    ·Assistant Kitchen Manager from 11 October 2010 to 17 February 2012.

    The Applicant’s employment was governed by either the Award and the Pay Scale derived from that Award or the FBTM Award and for a time, the Transitional Pay Scale.

13. I am satisfied that the document entitled “Unpaid Wages Summary – Attachment B” to the Application is an accurate calculation of the underpayment amounting to $15,235.65.[3]

    [3] Form 5 - Small Claim under the Fair Work Act 2009 filed by the Applicant on 28 May 2013, at Attachment B.

14. The Applicant has sought interest up to judgment in accordance with the provisions of s.547 of the Act. I am satisfied that there is no good cause as to why interest calculated at the rate of 6.5% should not be ordered.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 3 October 2013