NICHOLS v J B Quality Roofing Pty Ltd

[2012] FMCA 571

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NICHOLS v J B QUALITY ROOFING PTY LTD [2012] FMCA 571

INDUSTRIAL LAW – Fair Work small claims – no appearance by the respondent – applicant entitled to unpaid wages, unpaid overtime and unpaid annual leave and annual leave loading.

Building and Construction General On-site Award 2010, cl.3.1, 4.1, 15.1, 19.1, 19.3, 21.1, 21.2, 38.1, 38.2, Sch.B
Fair Work Act 2009 (Cth), Pt.2.2

Applicant: DILLAN NICHOLS

Respondent: J B QUALITY ROOFING PTY LTD

File Number: SYG 1263 of 2012

Judgment of: Emmett FM

Hearing date: 28 June 2012

Date of Last Submission: 28 June 2012

Delivered at: Sydney

Delivered on: 28 June 2012

REPRESENTATION

The applicant appeared in person.

There was no appearance by the respondent.

ORDERS

1. Judgment for the applicant in the sum of $6,789.73.

   NOTE A: The judgment sum is made up of $5,916.08 in respect of unpaid wages, $533.50 in respect of unpaid overtime and $340.15 in respect of unpaid annual leave and annual leave loading.

   NOTE B: The applicant was assisted by Ms Kovalsky, solicitor for the Fair Work Ombudsman.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1263 of 2012

DILLAN NICHOLS

Applicant

And

J B QUALITY ROOFING PTY LTD

Respondent

REASONS FOR JUDGMENT

1.By application filed on 8 June 2012, together with a “Form 5 Small Claim under the Fair Work Act 2009 (Cth)” filed on the same date, the applicant seeks amounts representing underpayments of wages, overtime, annual leave and annual leave loading in respect of work done by him between 16 July 2010 and 6 April 2011 where he was employed by the respondent as a labourer with labouring duties on varies sites in New South Wales.

2.The applicant gave sworn evidence that the information contained in the Form 5 filed on 8 June 2012 was true and correct, and in the circumstances, I accept the information contained therein.

3.The applicant seeks leave to proceed with his application ex parte this morning. In support of that application an affidavit of service was filed in Court. I note that the affidavit of service states that the application and the Form 5, filed on 8 June 2012, were served on the respondent at the respondent’s registered address, and I note that a copy of the ASIC search identifying that address is annexed to the affidavit. Service was effected on 13 June 2012 and I am satisfied it was effected in accordance with the rules of the Court.

4.The applicant also read the affidavit of Helen May Yuen, affirmed 28 June 2012, which is an information and belief affidavit relating to information she was provided by an inspector. I note that Ms Yuen is the Senior Fair Work Inspector with the Office of the Fair Work Ombudsman. The affidavit also annexes various correspondence with the principal of the respondent, Mr Bartley, asserting that the respondent has, in fact, been deregistered.

5.A search conducted by the Fair Work Ombudsman’s solicitor on behalf of the applicant on 29 June 2012 shows that there has been an application for voluntary deregistration of the respondent. However, there is no evidence to suggest that application has, as yet, been granted. In the circumstances, I am satisfied that it is appropriate that the Court proceed to hear the applicant’s application against the respondent ex parte and that there is no impediment in the Court doing so, simply by reason of the application by the respondent for deregistration.

6.I accept that the relevant award governing the applicant’s work was the Building and Construction General On-site Award 2010 (“the Award”), where relevantly cl.4.1 provides that the Award covers the building, engineering and civil construction industry and their employees. I am satisfied that the applicant was such an employee. I am further satisfied that the applicant was not employed as an apprentice. I have regard to cl.15.1 of the Award identifying the criteria necessary to be in apprenticeship, which includes a contract of training. I accept the applicant’s evidence that there was no such contract of training.

7.In the circumstances Sch.B.2.1.4 of the Award provides that the relevant level applicable to the applicant was level 1. Level 1 has four levels, A, B, C and D.  The relevant level applicable to the applicant is level A for the first three months of his employment and level B for the remainder of his employment with the respondent. I accept that level 1 covers the description of a trade person’s labourer and I am satisfied that the applicant was engaged in employment of that nature.

8.In the circumstances, pursuant to cl.19.3 of the Award, the applicant was entitled to minimum wages together with a special allowance and an industry allowance for the relevant period. The minimum wage for the relevant period is identified in cl.19.1.

9.I note that the relevant minimum weekly amount for the first three months from 16 July 2010 to 15 October 2010 at level A is $599 a week. Thereafter, the applicant was entitled to a minimum weekly wage of $611.50.

10.In addition to that weekly amount, pursuant to cl.21.1 of the Award, the applicant was entitled to a special allowance of $7.70 a week. The applicant was also entitled to an industry allowance of 3.7 per cent of the weekly standard rate per week pursuant to cl.21.2 of the Award. I note that the standard rate is defined in cl.3.1 of the Award to be a level 3 employee for the purposes of assessing the industry allowance.

11.Attached to the applicant’s Form 5 is a schedule which I am told by the solicitor for the Fair Work Ombudsman, and I accept, is based on roster and payslips provided to the Fair Work Ombudsman’s solicitor, Ms Kovalsky, and upon which this schedule of underpayment calculations has been made.

12.Based on those calculations, I accept that the amount that the applicant should have been paid for the period of his employment was $13,335.43, taking into account the minimum wage, the standard allowance and the industry allowance applicable at the relevant period. The applicant states that he was, in fact, paid only $7,419.35 for the relevant period, leaving a difference of $5,916.08.

13.In the circumstances, on the evidence and material before me I am satisfied that the applicant was entitled to be paid $13,335.43 and, in fact, has been underpaid to an amount of $5,916.08.

14.The applicant also seeks payment for overtime. Again, the spreadsheet calculated overtime based on the roster and payslips. I am satisfied that for the first three months the applicant was entitled to be paid six hours of overtime at one and a half times his rate of pay and 6.6 hours at double his rate of pay. For the latter period, the applicant was entitled to be paid six hours at one and a half times his pay and 10 hours at double time his pay, making a total of $533.50.

15.On the evidence and material before me, for the first three month period the applicant was entitled to $368.74 in respect of overtime but was paid only $139.15, leaving an underpayment in respect of overtime of $229.56. From 16 October 2010 to 6 April 2011, the applicant was entitled to an overtime payment of $491.26, but received only $187.32, leaving an underpayment in respect of overtime of $303.94.

16.In the circumstances, I am satisfied that the applicant was not paid his full overtime allowance, which, together for the period of his employment, I find to be $533.50.

17.The applicant makes a further claim for underpayment of annual leave and annual leave loading. Pursuant to cl.38.1 of the Award, the relevant calculation for annual leave is pursuant to the Fair Work Act 2009 (Cth) and Pt.2.2 of the Act, the “National Employment Standards”. Based on those entitlements, I am satisfied that the applicant was entitled to four weeks annual pay a year and that annual leave accrues at one thirteenth of the ordinary hours worked. The applicant is also entitled to a 17.5 per cent loading in respect of annual leave taken, pursuant to cl.38.2 of the Award.

18.I accept that, upon termination of his employment, the applicant was paid annual leave of $338.96 plus a loading of $59.32, making a total of $876.21.

19.On the evidence and material before me I am satisfied that the applicant was, in fact, entitled to annual leave in respect of 61.11 hours, making a total of $1,035.20 and annual leave loading on those hours of $181.16, making a total of $1,216.36.

20.In the circumstances, I am satisfied that the total underpayment in respect of annual leave and annual leave loading in respect of the applicant is $340.15.

21.Accordingly, judgment should be entered for the applicant in the total sum of $6,789.73.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  5 July 2012