Mudford v Nitro Civil Xcavations Pty Ltd
[2024] FedCFamC2G 559
•20 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mudford v Nitro Civil Xcavations Pty Ltd [2024] FedCFamC2G 559
File number(s): SYG 165 of 2024 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 20 June 2024 Catchwords: INDUSTRIAL LAW – Small claims – application to set aside orders made by Registrar for the payment of amounts said to be payable under an award – order made in the absence of the respondent – application to set aside Registrar’s orders treated as an application for review – on hearing de novo accepted by the parties that respondent owes applicant $460 – order made setting aside Registrar’s order with liberty to apply if the $460 is not paid by 21 June 2024. Legislation: Fair Work Act 2009 (Cth) s 716, Div 3 Pt 4.1
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 21.02(2)(a)
Building and Construction General On-site Award 2020
Division: Fair Work Number of paragraphs: 13 Date of hearing: 20 June 2024 Place: Sydney Applicant: In person, by video Respondent: Ms M Davis, by leave, for the respondent, by telephone ORDERS
SYG 165 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PETER MUDFORD
Applicant
AND: NITRO CIVIL XCAVATIONS PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
20 JUNE 2024
THE COURT ORDERS THAT:
1.Pursuant to r 21.02(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the time for making an application for review of the Registrar’s orders made on 26 March 2024 be extended to 8 May 2024.
2.Order 1 of the orders made by the Registrar on 26 March 2024 is set aside.
3.The applicant may request the Court by email to list the matter before Judge Manousaridis if the respondent does not pay the applicant $460 by 21 June 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
On 31 January 2024 the applicant, Mr Mudford, filed a Form 5 pursuant to this Court’s small claims jurisdiction under Division 3 of Part 4.1 of the Fair Work Act 2009 (Cth) (FW Act). Mr Mudford claimed that the respondent (NCX) had underpaid him wages in the sum of $2,454.30. The application was listed for hearing before a Registrar at 10.00 am on 26 March 2024.
Mr Mudford served a sealed copy of the Form 5 on NCX by post on 12 February 2024. No person on behalf of NCX appeared at the hearing before the Registrar. That led the Registrar to order that NCX pay Mr Mudford $2,454.30, and costs in the amount of $285, being the filing fee Mr Mudford paid.
On 3 May 2024 NCX lodged for filing (which was accepted on 8 May 2024) an application in a proceeding in which NCX sought, among other things the following:
1.The payment to Mr Peter Mudford be adjusted accordingly as what he has claimed is incorrect.
2.and or dismissed.
3.. . . .
4.Extension of time.
The application in a proceeding was listed before me on 29 May 2024. Mr Mudford appeared in person, and Ms Davis, who is the secretary and director of NCX, appeared on behalf of NCX. At the hearing Ms Davis accepted NCX received by post the Form 5. She said she drove up to Sydney to attend the hearing on 26 March 2024, but she discovered that the hearing was by video, not in person and, for that reason, she was unable to appear. Ms Davis said she was not informed that the hearing would proceed by video or by telephone. Although not given under oath, I accept Ms Davis’s explanation.
At the hearing on 29 May 2024 I informed Mr Mudford and Ms Davis that I proposed to deal with the matter on the basis that what was before me was an application for the review of the Registrar’s decision. I explained that the effect of my doing so was that I would consider afresh Mr Mudford’s claims. I then invited Mr Mudford and Ms Davis to explain to me their respective positions. The hearing concluding by my making orders for the filing of evidence and setting the matter down for hearing before me at 10:00 am on 20 June 2024.
I heard the matter on 20 June 2020. Mr Mudford relied on an affidavit he made on 7 June 2024; and NCX relied on two affidavits Ms Davis made, one on 16 April 2024, and one on 6 June 2024.
After hearing what each of Mr Mudford and Ms Davis wished to say, the relevant facts were clearly revealed to me. NCX employed Mr Mudford from 25 June 2021 to 4 February 2022. He was paid on the basis of a flat hourly rate of $28.50. On 6 March 2023 the Fair Work Ombudsman (FWO) issued to NCX a compliance notice pursuant to s 716 of the FW Act which claimed that Mr Mudford was covered by the Building and Construction General On-site Award 2020 (Award). That resulted in NCX calculating the amounts it ought to have paid Mr Mudford under the Award, and entering into a payment plan.
There is annexed to Ms Davis’s affidavit of 16 April 2024 a table headed “Schedule 5 – Tax table for back payments, commissions, bonuses and similar payments| Australian Taxat” (Schedule). In the column headed “Gross Payments” there are weekly amounts from 9 June 2023 to 1 December 2023 totalling $7,954.30; in the column headed “Tax Withholding” amounts deducted from the weekly payments commencing on 1 September 2023 totalling $3,530; and in the column headed “Net Amount” weekly amounts representing the different between the gross amount and the tax withholding. The total of the net amounts is $4,424.30. Ms Davis informed me that all but two of the payments, being amounts totalling $460, have been paid; but Ms Davis informed me that she would arrange to pay the $460 to Mr Mudford by 21 June 2024.
Mr Mudford informed me that, according to his records, he has received from NCX amounts totalling $4,344.30. That in substantial part accords with the total of the $4,424.30 of the net amount the Schedule records NCX had paid to Mr Mudford. Mr Mudford accepted that NCX was entitled to deduct the tax the Schedule records as having been deducted.
The upshot is that NCX owes Mr Mudford $460; and Ms Davis informed me that NCX would pay this amount to Mr Mudford on 21 June 2024.
In these circumstances, I propose to order that order 1 of the Registrar’s order made on 26 March 2024 be set aside. I do not propose to set aside order 2 of the Registrar’s orders which requires NCX to pay to Mr Mudford $285, being the filing fee Mr Mudford paid on filing his Form 5. NCX had failed to pay within time all of the amounts in the payment plan it had submitted to the FWO; and, for that reason, Mr Mudford was justified in commencing the proceeding.
I will also order, pursuant to r 21.02(2)(a) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth), that the time for NCX applying for a review of the Registrar’s orders be extended to 8 May 2024, and that Mr Mudford have liberty to list the matter before me if NCX does not by 21 June 2024 pay him the $460.
Mr Mudford submitted that he should be compensated for the time he took off from work to prepare and present his case. As I informed Mr Mudford, the Court does not have power to award compensation for the work Mr Mudford performed in preparing for or appearing in this matter.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 20 June 2024
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