REHMAN v Om SAI Indian Grocery Store Pty Ltd

[2014] FCCA 3095

FEDERAL CIRCUIT COURT OF AUSTRALIA

REHMAN v OM SAI INDIAN GROCERY STORE PTY LTD & ORS [2014] FCCA 3095

Catchwords:
INDUSTRIAL LAW – Fair Work – application for summary judgment – unpaid wages and outstanding superannuation – judgment entered.

Legislation:  
Fair Work Act 2009

Applicant: SHOEBUR REHMAN

First Respondent: OM SAI INDIAN GROCERY STORE PTY LTD

Second Respondent: SONIA GOEL

Third Respondent: NIKHIL YOGI

File Number: MLG 1973 of 2013

Judgment of: Judge Riethmuller

Hearing date: 24 March 2014

Date of Last Submission: 24 March 2014

Delivered at: Melbourne

Delivered on: 24 March 2014

REPRESENTATION

Counsel for the Applicant: Mr Slonim

Solicitors for the Applicant: Gleeson & Co Lawyers

Counsel for the Respondents: There being no appearance by or on behalf of the Respondents

ORDERS

1. Judgment be entered against the First Respondent in the sum

   
   

   of $10,602.62 pursuant to Rule 13.03C of the Federal Circuit Court Rules 2001.

2. The matter be adjourned to 22 May 2014 at 9.30am for the issue

   
   

   of determining the allegations of breach of the Act and if proved the determination of penalty.

3. There be liberty to the parties to apply in relation to these orders.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1973 of 2013

SHOEBUR REHMAN

Applicant

and

OM SAI INDIAN GROCERY STORE PTY LTD

First Respondent

SONIA GOEL

Second Respondent

NIKHIL YOGI

Third Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

1. This is an application under the Fair Work Act that arises from the alleged failure of the respondents, the First Respondent as operated by the Second and Third Respondents, to pay to the Applicant appropriate wages and superannuation in his employment in their retail store.

2. The Applicant sets out, in his affidavit material, the long hours that he worked.  He worked daily during the holiday period from university.  He is in Australia on a student visa studying a professional course and, not surprisingly, wished to work during his holiday period to gain an income and some monetary resources before semester and studies recommenced.

3. The Applicant worked each day of the week during the period from 20 December 2012 to 16 February 2013, a total of 37 days of ordinary days, eight Sundays, seven Saturdays, four public holidays, and also participated in training for 16 hours.  Calculated in accordance with the award, the 37 ordinary days at eight hours, which is all the Applicant claims for given that his recollection as to precise hours is not perfect but that it is clear he worked at least the day, comes to some $6,485.36.  For the Sundays, based upon the award rate, it comes to $2,243.84; Saturdays to $1,325.52; the public holidays to $1,402.56 and the training days to $350.56.

4. The Applicant’s basic entitlement, therefore, on the minimum rate set out in the Award, assuming that he did only work the eight hours a day, comes to $11,807.84.  He was paid only $3000 for this period. 

5. The payslips that were annexed to an affidavit filed by the Third Respondent indicate on the face of them a number of breaches of the Act.  For example, on the face of the payslips, they show an hourly rate of pay of only $17.50 when the award minimum is $21.91.  At no time do the payslips indicate any public holiday pay during the period.  It does not appear that the respondents held any money for taxation which, given the amounts of money involved in this case, seems to be inappropriate.

6. The payslips show an amount being allocated to superannuation yet there was no superannuation paid, nor even the details of an account to pay it into.  The payments were said to have been in cash.  No ledgers have been produced and it seems to me that in the modern world it is not a good practice for employers to pay in cash given that electronic transfers are so easy and provide a good quality record of the actual payments made.

7. This is no doubt the reason that most employers now pay by electronic funds transfer with an email of a payslip so that there is no question about what has been paid and indicating the appropriate calculations that have been done to calculate the amount of pay.  Such a practice also enables employees to check their payslip and if there is any error it can be dealt with between employer and employee without the difficulties that arise in bringing proceedings under the Act.

8. On the material before me, which includes a host of affidavits of witnesses seeing the Applicant in the store, he has been underpaid $8,807.84.  The superannuation entitlement was $1,062.71.  Interest on his superannuation under the Act would be at 10 per cent which brings the total to $1,168.98.  Interest accrued pursuant to the interest rate set under the Rules for the outstanding wages is $625.80.

9. In the circumstances, the Applicant is entitled to judgment

   
   

   in the sum of $10,602.62, being unpaid wages and interest

   
   

   of $8,807.84 and $625.80, respectively, together with outstanding superannuation and interest thereon of $1,168.98.

10. I therefore give judgment against the First Respondent in that sum.

11. I will adjourn over to 22 May at 9.30am the issue of the precise breaches of the Act and, if proved, the determination of penalty pursuant to the legislative provisions to ensure that there is ample opportunity for the Respondents to appear on that matter given that it involves a civil penalty being potentially imposed, not simply a civil claim. 

12. Of course, it remains open to the First Respondent to apply to set aside an order made in its absence under the Court Rules, if the First Respondent wishes to challenge this judgment.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  28 January 2015