Miller v SHARON-LEE Holdings Pty Ltd; (ACN 112 486 030)
[2012] FMCA 1110
•1 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MILLER v SHARON-LEE HOLDINGS PTY LTD (ACN 112 486 030) | [2012] FMCA 1110 |
| INDUSTRIAL LAW – Fair Work small claims – no appearance by the respondent – leave granted to the applicant to proceed ex parte – applicant entitled to unpaid wages. |
Hair and Beauty Industry Award 2010
| Applicant: | KRISTY ANNE MILLER |
| Respondent: | SHARON-LEE HOLDINGS PTY LTD (ACN 112 486 030) |
| File Number: | SYG 1526 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 1 November 2012 |
| Date of Last Submission: | 1 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2012 |
REPRESENTATION
| The applicant appeared in person with the assistance of Ms M Bwadi of the office of the Fair Work Ombudsman |
| There was no appearance by or on behalf of the respondent |
ORDERS
Judgment for the applicant in the sum of $1,363 (“the Judgment Sum”).
The Judgment Sum is to be paid within 28 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1526 of 2012
| KRISTY ANNE MILLER |
Applicant
And
| SHARON-LEE HOLDINGS PTY LTD (ACN 112 486 030) |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
By way of Application filed on 13 July 2012 and “Form 5 Small Claim under the Fair Work Act 2009 (Cth)” (“Form 5”) filed on the same date, the applicant seeks payment for unpaid wages from the respondent.
The applicant seeks leave to proceed with her application today ex parte. In support of that application, the applicant read two affidavits of service by Marcel Smithers, one sworn 20 July 2012, the other sworn 31 October 2012. Those affidavits satisfy the service requirements and annex a copy of the registered business office of the respondent.
In light of the evidence before me, I am satisfied that the respondent was duly served with a copy of the Application and Form 5 on 20 July 2012 in accordance with the rules of the Court. The respondent has, for whatever reason, not filed any documents in this proceeding.
Accordingly, I am satisfied that it is appropriate that the matter proceed ex parte this morning.
The applicant read an affidavit sworn by her on 23 October 2012. In that affidavit, the applicant deposed that at her interview, Ms Clarke, the sole director of the respondent, told her that the position was casual with a view for it to become a permanent position in the future and that her hourly rate of pay would be $23.50 an hour. A payslip attached to the applicant’s affidavit for the pay period 18 July 2011 to 31 July 2011 identifies $23.50 as the hourly rate.
The applicant was employed as a receptionist at the respondent’s premises. On 11 August 2011 the applicant deposed that she resigned from her employment and that as a casual employee did not need to provide notice of her termination. The applicant claims that she was unpaid between 2 August 2011 and 11 August 2011, during which time she worked a total of 58 hours. At the hourly rate of $23.50, the applicant claims she should have been paid $1363 for that period.
I am satisfied that the relevant award that governed the applicant’s employment was the Hair and Beauty Industry Award 2010, tendered by the applicant and marked Exhibit 1A. I am also satisfied that whilst that award provided for an hourly rate of $21.10 per hour, the agreed rate of $23.50 is a safety net contractual entitlement which entitled the applicant to be paid at that rate for those hours worked.
On the evidence and material before me, I am satisfied that the applicant is entitled to payment for 58 hours between 2 August 2011 and 11 August 201 at a rate of $23.50, making a total of $1,363.
In the circumstances, I am satisfied that the applicant is entitled to a total payment from the respondent of $1,363 and, accordingly, judgment should be entered for the applicant in that sum
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 22 November 2012
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