Pensini v Jackson
[2012] FMCA 749
•31 August 2012
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 |
| Black v Young Republic & Anor FMCA [2012] 729 Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440 McShane v Image Bollards Pty Ltd [2011] FMCA 215 |
| 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 informal manner; and
(b) without regard to legal forms and technicalities.
(4) At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.”
(See Black v Young Republic & Anor FMCA [2012] 729 at [5] – [9] for further discussion as to the nature of this jurisdiction and its operation within the Court’s exercise of judicial power.)
Is The Application Within the Small Claims Division?
In the current case, the applicant elected to proceed under the small claims procedure. In order for the claim to be considered and dealt with under that procedure, it must relate to an amount that the respondent was required to pay, as set out in s.548(1A) of the FWA. Further the Court cannot, unless prescribed by the Fair Work Regulations 2009 (Cth) (see Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440 at [10] per Lucev FM and McShane v Image Bollards Pty Ltd [2011] FMCA 215 at [4] per Lucev FM), order an amount more than $20,000.
The applicant’s claim, as set out in his points of claim (known as the “Form 5”), was that the respondent had breached the Building and Construction On-site General Award 2010 (“the Award”) in four respects. They were as follows (Parts H and I of the Form 5) :
1)The respondent failed to pay the applicant wages under the Award. The applicant sought payment of the difference between the amounts of wages he was paid, and the award rate that allegedly should have been paid to him. That was said to total $6,911.44.
2)The respondent failed to pay the applicant leave loading, as was required under the Award. The applicant sought payment of $383.62 as remedy for that alleged breach.
3)The respondent failed to pay the applicant a travel allowance, as was required under the Award. He alleged that the entitlement under that allowance, over the course of his employment, was to the value of $4,759.88.
4)Despite regularly working overtime, and being entitled to payment for it, the respondent had failed to pay the applicant for any overtime work performed. The applicant sought $272.82 as remedy for that alleged breach.
Those four breaches were all said to be in relation to entitlements that the respondent was required to pay under the Award. As such, they were amounts that came within s.548(1A)(b) of the FWA. Further, the remedy sought by the applicant, that the respondent pay $12,327.76, was within the limits of the award that the Court can make (s.548(2)(a) of the FWA).
The Claim
The factual background surrounding the complaint, as set out in the Form 5, is as follows:
1)The applicant was employed full-time by the respondent commencing on 18 January 2010 (items 21 and 23 of the Form 5).
2)He was employed as an apprentice carpenter and performed carpentry and building work in various suburbs around Sydney (items 16, 17 and 20 of the Form 5).
3)His hours of work were Monday to Friday, 7am to 3pm.
4)The “modern” award applicable to his employment was the Building and Construction General Onsite Award 2010.
5)The applicant ceased employment with the respondent on 17 July 2011. That is close to 18 months after his commencement.
The applicant alleged that during that time he was not paid his entitlements under the Award in relation to his hourly rate and his overtime rate. Further, that he was not paid leave loading, nor a travel allowance.
In addition, although no remedy was sort for it in the Form 5, the applicant alleged that he “… never received a pay slip, group certificate or superannuation of 9%” (Part I of the Form 5). [At the hearing, the applicant clarified that that information was only included for the sake of completeness, and that no claim was made, nor remedy sought, under the FWA in relation to those matters].
Attached to the Form 5 was a document which set out the amounts sought by the applicant as remedy for the alleged breaches and how those sums had been calculated (see further below).
Before the Court
The matter was first before the Court on 8 August 2012. At that time, the applicant appeared in person and leave was granted for him to be assisted by his father. There was no appearance by, or for, the respondent.
An email from the respondent had been received by the Court’s registry on 7 August 2012. In that email, the respondent stated that he would “… not be able to attend to the court room”, and that he would be “… back in Sydney on 13 of August 2012”. The respondent requested that the Court “rearrange the date”.
In light of that email, I was satisfied that the respondent had notice of the application and that the matter was before the Court. Further, to the extent that that correspondence could be understood as an application for an adjournment, I was not satisfied that that email disclosed any satisfactory basis upon which an adjournment of the first Court date should be granted. In light of this, I proceeded to set the matter down for a final hearing at 2.15pm on 22 August 2012.
At that time, the applicant again appeared in person and leave was again granted for him to be assisted by his father. There was no appearance by, or for, the respondent. Nothing had been heard from the respondent indicating that he had any difficulty in attending at the Court. Nor had an adjournment application been made by him or anyone on his behalf.
The applicant sought leave, which was granted, to rely upon an affidavit of service, made by him on 9 August 2012 and filed on 10 August 2012. The applicant affirmed that he had sent to the respondent, by registered pre-paid post, a letter, dated 8 August 2012, as well as a copy of a letter dated 24 July 2011, a “Fair Work letter”, a “financial claim” and a “Statement of events”.
Annexed to that affidavit were copies of the various documents said to have been sent to the respondent. Annexure ‘A’ was the letter to the respondent, dated 8 August 2012, advising him that the matter had been set down for a final hearing. The letter specified the time, date and location of that final hearing.
In light of that affidavit, and in particular annexure ‘A’, I was satisfied that the respondent had been given notice of the listing for a final hearing, and that the time of that notice was reasonable in the circumstances. Further, that he had been on notice that, in his absence, the Court could proceed to a hearing, pursuant to r.13.03C(1)(e) of the Federal Magistrates Court Rules 2001 (Cth). In those circumstances, it was appropriate that the matter proceed to a hearing.
At the Hearing
The applicant and his father, Mr Steven Pensini (“the applicant’s father”) both gave oral evidence to the Court in support of the application and the claims as set out in the Form 5.
The Applicable Award
The application to the Court alleged that the respondent had breached various terms in the Award and, as a result, had breached the FWA. In particular, those terms in that Award that applied to four year apprenticeships. It was the applicant’s contention that although he had only signed the “apprenticeship papers” some two to three months after commencing employment with the respondent, at all times he had been employed as an apprentice.
It was his oral evidence that he had commenced employment with the respondent on or about 17 January 2010. That employment was said to have commenced following a telephone conversation between the applicant and the respondent the evening prior. It was the applicant’s evidence that, during that conversation, he had asked whether the respondent had “an opening” for a first year apprentice, to which the respondent had answered “yes”. In addition, it was the applicant’s evidence that there was no change in his wage, or employment conditions, after he and the respondent signed the “apprenticeship papers” some two to three months later.
In light of that evidence, I accept that the applicant was at all relevant times employed by the respondent as an apprentice. Further, in those circumstances, that that employment relationship was at all times covered by the Award.
The Remedies Sought
The applicant alleged that the respondent had breached the award in four respects. He sought that the respondent be ordered to pay four sums of money to remedy those alleged breaches. The four amounts sought, and the calculation of those amounts, was set out in a document titled “Jason Pensini …. Building and Construction General Onsite Award 2012 – 4 Year Apprenticeship”, attached to the Form 5 (“the Table”).
At the hearing, the applicant’s father gave oral evidence in relation to that Table. In particular, it was his evidence that he had generated the Table attached to the Form 5. Specifically, that he had acquired the relevant and applicable rates for the Award from the Fair Work Ombudsman’s Office. He had then used those award rates to determine the difference between his son’s award entitlement and the payment he allegedly had received (or not received) from the respondent. That is, the applicant’s alleged salary for the first and second (part) years of his employment and the alleged non-payment of any travel allowance, leave loading or overtime. Further, it was the applicant’s father’s oral evidence that he had been a managing director of a company for 7 years and that, to the best of his knowledge, the calculations set out in that Table were correct.
The applicant’s reference to breaches of the Award were not particularised with reference to relevant parts of the Award. Nor was any particularity provided by way of oral evidence. For the purposes of this judgment therefore I have proceeded on the basis that the applicant’s allegations of breaches referred to in the Table were in relation to those parts of the Award as each is identified by the Court.
Non-Award Wage Payment
The applicant’s first claim relates to the payment of wages. He alleges that the rate he was paid was below the relevant award wage. The applicant’s claim, as set out in the Table, is that, during the course of his employment, he was underpaid $6,911.44. That calculation appears to be based on the applicant having worked a 38 hour week and reflects changes in both the award wage and the applicant’s weekly wage. This appears to relate to cl.19.7 of the Award.
It was the applicant’s oral evidence to the Court that, for the first year of his apprenticeship, he was paid $250 for each week he worked (although payment of that sum was occasionally late). Further, the applicant claimed that in his second year of employment, he was paid $340 per week.
On the basis of the applicant’s unchallenged oral evidence, I accept that the applicant was paid $250 and $340 dollars for the first and second years of his employment respectively. Further, in light of the applicant’s and, in particular, his father’s oral evidence to the Court (see [25] above) I am satisfied that the calculations set out in that Table are an accurate reflection of the applicant’s award entitlement, the actual wage he was paid and, on that basis, the sum of wages owed to him by the respondent. Accordingly, I will make an order that the respondent pay the applicant the sum of $6,911.44.
Fare Allowance
The applicant claims that, despite being required to travel to various work sites around Sydney, he was not paid a fare allowance. That was alleged to be a breach of his entitlement under the Award. [This appears to relate to cl.25.2 of the Award.] As remedy, the applicant seeks payment of $4,759.88 from the respondent. Again, the calculation of that sum was set out in the Table annexed to the Form 5.
The applicant gave oral evidence to the Court that, during the course of his employment, he had worked in “mostly in the City, Cremorne, North Sydney and a few times in the Hills district”. Further, that he had lived in Castle Hill for the entirety of his employment. Although entitled to a travel allowance under the Award, it was the applicant’s oral evidence that that allowance had never been paid to him.
In light of that unchallenged evidence, I am satisfied that the applicant was entitled to a fare allowance. Further, that he had never been paid that allowance. Further, given his father’s evidence, I am satisfied that the amount set out in the Table accurately reflects the applicant’s fare allowance entitlement under the Award. Accordingly, I will make an order that the respondent pay the applicant $4,759.88.
Overtime
The applicant claims that during the course of his employment he was required to work overtime and, despite being entitled under the Award, he was never was paid for that overtime work. The applicant seeks that the respondent pay $272.82 as remedy for overtime work performed by him (per the table attached to the Form 5). [I proceeded on the basis that this related to cl.36.2 of the Award.]
It was the applicant’s oral evidence before the Court that he had been required to work overtime “almost every day”. Further that he had never been paid for overtime over the cause of his employment as he received the “same pay every week”.
In light of that unchallenged evidence, I accept that the applicant was required to work overtime from time to time and that he received no payment for those additional hours worked. Further, that under the Award he was entitled to be paid for those additional hours at the rate of “time and a half for the first two hours and at double time thereafter”.
The remedy sought by the applicant was based on him having only worked one hour of overtime per week. In light of the applicant’s other evidence, one hour a week would appear to be a modest assessment of the actual overtime that he was required to, and did, work. Further, in light of his father’s evidence, I am satisfied that that sum as set out in the Table and equivalent to the claim as originally made is both accurate and appropriate. Accordingly, I will make an order that the respondent pay the applicant the sum of $272.82.
Leave Loading
Finally, the applicant alleged that the respondent failed to pay to him his leave loading entitlement, as provided for under the Award. [I proceeded on the basis that this was a reference to cl.38.2(b) of the Award.] The applicant alleged that he had not been paid any leave loading, despite having taken holidays during the course of his employment and being entitled to leave loading under the Award. As remedy, the applicant sought payment from the respondent in the sum of $383.62.
It was the applicant’s oral evidence that when he took holidays he “got paid as normal”. That is, he was paid $250 during the first year of his employment, and $340 in the second year.
In light of cl.38.2(b) of the Award, I accept that the applicant was entitled to the payment of leave loading. Further, in light of his unchallenged evidence, I find that the applicant was not paid that entitlement. I accept that the sum of $383.62, as set out in the Table, is the amount that the applicant was entitled to be paid. I will make an order accordingly.
Conclusion
I find that the respondent contravened the FWA, in relation to the applicant’s employment by him, in that he breached several terms of the relevant Award. Specifically, that the respondent failed to pay the applicant the relevant award wage for the course of his employment. Further that he failed to pay the applicant his travel allowance, leave loading and overtime entitlements as provided for in that Award. In light of these breaches, I will make an order that the respondent pay the applicant, as remedy for those breaches, the sum of $12,327.76.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 31 August 2012
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