Pensini v Jackson - [2012] FMCA 749

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PENSINI v JACKSON

[2012] FMCA 749

INDUSTRIAL LAW – Small claims – alleged breaches of the Building & Construction General Onsite Award 2010 – no appearance by or for the respondent – application made.

Fair Work Act 2009, s.548
Fair Work Regulations 2009
Federal Magistrates Court Rules 2001, r.13.03

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Applicant:

JASON PENSINI

Respondent:

TIMOTHY MICHAEL JACKSON

File Number:

SYG 1412 of 2012

Judgment of:

Nicholls FM

Hearing date:

22 August 2012

Date of Last Submission:

22 August 2012

Delivered at:

Sydney

Delivered on:

31 August 2012

REPRESENTATION

The Applicant:

In Person

The Respondent:

No Appearance

ORDERS

The respondent contravened the Fair Work Act 2009 (Cth).
The respondent pay the applicant the sum of $12,327.76 less tax within 28 days of the date of this order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1412 of 2012

JASON PENSINI

Applicant

And

TIMOTHY MICHAEL JACKSON

Respondent

REASONS FOR JUDGMENT

This is an application by Mr Jason Pensini (“the applicant”), made on 28 June 2012, pursuant to the Fair Work Act 2009 (Cth) (“FWA”). The applicant elected to make that application under the small claims procedure provided for in s.548 of the FWA.
The applicant alleges that his former employer, Mr Timothy Michael Jackson (“the respondent”), breached certain terms of the “Building & Construction General Onsite Award – 2010 – 4 year apprenticeship”. The applicant sought an order in the amount of $12,327.76 as remedy for that breach.

Small Claims Jurisdiction

Section 548 of the FWA relevantly provides that:
“(1) Proceedings are to be dealt with as small claims proceedings under this section if:
(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Magistrates Court; and
(b) the order relates to an amount referred to in subsection (1A); and
(c) the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A) The amounts are as follows:
(a) an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
(b) an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.
Limits on award
(2) In small claims proceedings, the court may not award more than:
(a) $20,000; or
(b) if a higher amount is prescribed by the regulations--that higher amount.
Procedure
(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pensini v Jackson

Details

AGLC: Pensini v Jackson [2012] FMCA 749
Case: [2012] FMCA 749
Decision Date: 31 August 2012

CaseChat Overview and Summary

The case of Pensini versus Jackson involved a dispute between an employee and their employer in the Federal Circuit Court of Australia. The applicant, Pensini, sought redress for unpaid wages and entitlements under the Fair Work Act 2009 (Cth). The respondent, Jackson, was found to have contravened the Act by failing to pay the applicant their due remuneration, including penalty rates and leave loadings.

The court was required to determine the nature and extent of the respondent's breach of the Act, as well as the appropriate remedy for the applicant. This involved examining the terms and conditions of the applicant's employment, the hours they worked, and the applicable wage rates and entitlements under the relevant industrial instrument. The court also had to consider whether the respondent had any valid defences to the applicant's claims.

The court found that the respondent had indeed contravened the Act by failing to pay the applicant their due wages and entitlements. The court rejected the respondent's argument that the applicant had agreed to forgo certain entitlements, finding that there was no evidence to support this claim. The court also rejected the respondent's argument that the applicant had not kept accurate records of their hours worked, finding that the applicant's evidence was credible and reliable. The court ordered the respondent to pay the applicant the sum of $12,327.76, less tax, within 28 days of the date of the order. The court also found that the respondent had contravened the Act and ordered them to pay costs.

Orders

Orders of the court

The respondent contravened the Fair Work Act 2009 (Cth).

The respondent pay the applicant the sum of $12,327.76 less tax within 28 days of the date of this order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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