TAHARA v Simple Business Pty Ltd

[2015] FCCA 523

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAHARA v SIMPLE BUSINESS PTY LTD [2015] FCCA 523

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 – Whether the applicant was paid in accordance with the relevant award – application allowed.

Legislation:  
Fair Work Act 2009, s.566

Applicant: AI TAHARA

Respondent: SIMPLE BUSINESS PTY LTD

File Number: SYG 317 of 2015

Judgment of: Judge Street

Hearing date: 5 March 2015

Date of Last Submission: 5 March 2015

Delivered at: Sydney

Delivered on: 5 March 2015

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: Self-Represented

Counsel for the Respondent: In Person

Solicitors for the Respondent: Self-Represented

ORDERS

1. Judgment for the applicant in the sum of $3910.

2. No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 317 of 2015

AI TAHARA

Applicant

And

SIMPLE BUSINESS PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under the Fair Work Act 2009 under s.566. The claim advanced is a small claim. This is the return date of the application and a director and the financial officer of the respondent appeared for the respondent. I indicated to the parties that I would have them sworn and take their evidence at the same time, the applicant had the benefit of an interpreter assisting the applicant in the giving of the sworn evidence.

2. The applicant’s claim was, in fact, for $6270.72 in respect of a calculation which was supported by the pay sheets given to the applicant by the respondent.  The pay sheets identified the applicant was paid, effectively, $11 an hour, however, it is clear from the evidence given by the respondent with which the applicant agreed, there was tax paid on the amounts paid to the applicant which lifted the payment of the hourly rate to approximately $17 an hour.  The applicant has received a certificate in respect of her income for that $3062 tax that was paid by the respondent. In those circumstances, the applicant, if her income is below the tax threshold, can recover that sum. 

3. I am satisfied on the issue between the applicant and the respondent, that the applicant was, in the circumstances, a casual worker for the purpose of the award and in that regard, I take into account the absence of any written document provided to the applicant identifying that she was engaged on a part-time basis, rather than as casual. 

4. I accept the applicant’s evidence that she was, in the circumstances, a casual worker and I do not accept, in the circumstances, that she should have been paid at the rate of a part-time worker.  However, the applicant did identify that she had received a certificate in relation to the payment of tax and in the course of giving judgment, the applicant sought to reagitate that issue.  I am satisfied, in the circumstances and on the evidence from the accountant, her tax was paid in the amount of $3062 and this should be brought to account. 

5. In those circumstances, the amount which the applicant should have been paid, taking into account her position as a casual, was $3155.  There is no dispute in relation to the entitlement to penalty rates and that amounts to a total sum of $3910 for which the applicant is entitled to .judgment 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  6 March 2015