Tanswell v Barber
[2013] FMCA 194
•21 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TANSWELL v BARBER & ANOR | [2013] FMCA 194 |
| INDUSTRIAL LAW – Fair Work small claims – applicant entitled to unpaid wages, unpaid overtime, unpaid annual leave, unpaid annual leave loading and payment in lieu of notice upon termination. PRACTICE & PROCEDURE – No appearance by the respondent – matter proceeded ex parte. |
| Fair Work Act 2009 (Cth) ss.87, 117 Federal Magistrates Court Rules 2001 (Cth) r.6.10 |
| Applicant: | BEAU ALLAN TANSWELL |
| First Respondent: | LUKE ROBERT BARBER |
| Second Respondent: | ROBERT LEONARD BARBER |
| File Number: | SYG 236 of 2013 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 21March 2013 |
REPRESENTATION
| The applicant appeared in person and was assisted by Ms M. Bwadi, solicitor with the office of the Fair Work Ombudsman |
| No appearance by or on behalf of the respondent |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 236 of 2013
| BEAU ALLAN TANSWELL |
Applicant
And
| LUKE ROBERT BARBER |
First Respondent
| ROBERT LEONARD BARBER |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By application filed on 8 February 2013 and “Form 5 Small claim under the Fair Work Act 2009 (Cth)” filed on 8 February 2013 the applicant seeks payments from the respondent for unpaid wages, unpaid overtime, unpaid leave and payment in lieu of notice upon termination.
The applicant was employed by the respondent as an electrical worker grade 2 between 11 November 2011 and 19 April 2012.
The applicant was assisted by Ms Bwadi, Solicitor with the Fair Work Ombudsman. Ms Bwadi tendered an extract from business.gov.au which was marked Exhibit 1A. Based on the evidence before me, I am satisfied that the first respondent and second respondent carry on business as a partnership trading in the name ‘LR & RL Barber’ or ‘Coiffeur Installations’.
Neither respondent attended today’s hearing, and no communication has been received from either respondent seeking an adjournment of today’s hearing, or for any other reason.
The applicant seeks leave to proceed with his application ex parte and that orders be made for substituted service upon the respondents.
In support of that application, Ms Bwadi read the affidavits of Tony Mileto, sworn 8 March 2013; Michael Weir, sworn 14 March 2013; and Mais Bwadi, sworn 19 March 2013. The substance of the evidence goes to the attempts made by the applicant to serve the respondents.
Based on that evidence, I am satisfied that on 27 February 2013, Mr Weir, a Fair Work Inspector employed by the Office of the Fair Work Ombudsman, attended premises at 374 Calinda St, Parkes and spoke with a female who identified herself as Katie Barber and the daughter-in-law of the second respondent. Mr Weir deposed that Ms Barber told him that the he could leave the documents for the second respondent with her, and that she would make sure that they were received by the second respondent.
Mr Bwadi deposed that on 27 February 2013, she received a telephone call from the second respondent who confirmed that he had received the documents provided by Mr Weir to Ms Barber. He also confirmed to Ms Bwadi that he would give the documents to the first respondent.
In the circumstances, I am satisfied that it is appropriate to make an order for substituted service of the second respondent to the effect that service was effected upon the second respondent on 27 February 2013 when documents were left for the second respondent at 374 Calinda St, Parkes with his daughter-in-law, Ms Barber.
I note that pursuant to rule 6.10 of the Federal Magistrates Court Rules 2001 (Cth), an application against a partnership must be served on one or more partners and when served upon one partner, the documents are taken to be served on each of the partners.
In light of the evidence before me, I am satisfied that the respondents have been duly served with the relevant documents relating to this proceeding and have had a reasonable time in which to participate in the proceeding before this Court.
Accordingly, I am satisfied that service has been effected upon the respondents and it is appropriate that the matter proceed ex parte.
In support of his claim against the respondents, the applicant read his affidavit, affirmed 21 March 2013, and the affidavit of Dale Woods affirmed 19 March 2013, a Fair Work Inspector with New South Wales Industrial Relations.
The applicant also tendered The Electrical, Electronic and Communications Contracting Award 2010 [MA000025] (Modern Award) (“the Award”) which was marked Exhibit 2A. I am satisfied that the evidence of the duties engaged in by the applicant were duties that were covered by that Award and that in accordance with the Award, the applicant was employed as an electrical worker grade 2.
Based on the evidence before me, I accept that the applicant was employed as an electrical technician by the respondents between 11 November 2011 and 11 April 2012.
Further, I accept the applicant’s evidence that he did not receive any pay slips during the period and instead was provided with a document annexed to his affidavit that purports to be a summary of time worked and payment made. I also have regard to the evidence of Mr Woods of the attempts made to obtain payslips for the applicant, including the issuing of notices to produce which remain unanswered.
Unpaid Wages
I accept the applicant’s evidence that he worked a total of 752 hours during his period of employment and that in accordance with the Award, was entitled to receive $16.29 per hour. I accept that the applicant was entitled to be paid $12,753.12 for those ordinary hours, yet received only $6,760.21.
Accordingly, the applicant is entitled to $5,993.71 in unpaid wages for ordinary hours worked.
Unpaid Overtime
I accept that the applicant worked a total of 129.4 hours of overtime and in accordance with the Award was entitled to be paid a total of $2,635.58 for overtime worked. I accept that the applicant was entitled to be paid $25.44 per hour for 103.6 of those hours, and $33.92 for 25.8 of those hours.
Accordingly, on the evidence and material before me, I am satisfied that the applicant is entitled to be paid a total of $2,374.57 for overtime hours worked during his period of employment.
Unpaid Annual Leave
The applicant seeks payment for unpaid annual leave.
Clause 29.1 of the Award refers the entitlement of annual leave to the National Employment Standard which, in turn, refers to the Fair Work Act 2009 (Cth). Section 87(1) of the Fair Work Act 2009 (Cth) provides that four weeks leave accrue each year and accrue progressively.
In the circumstances, I accept that the applicant is entitled to annual leave at the rate of $16.96 an hour for 57.85 hours, making a total of unpaid annual leave of $981.14.
Accordingly, the applicant is entitled to $981.14 in unpaid annual leave.
Unpaid Annual Leave Loading
The applicant seeks payment for unpaid annual leave loading.
Subclause 28.3(a) of the Award provides that leave loading is payable at a rate of 17.5% on annual leave calculations.
In the circumstances, I accept that the applicant is entitled to annual leave loading of $171.69, being 17.5% of his annual leave entitlement.
Accordingly, the applicant is entitled to $171.69 in unpaid annual leave loading.
Payment in Lieu of Notice upon Termination
I accept the applicant’s evidence that on 11 April 2012 the applicant was told by the second respondent that he did not need to return to work. I accept the applicant’s evidence that he was not paid anything in lieu of notice on termination on 11 April 2012.
In accordance with subsection 117(2)(b) of the Fair Work Act 2009 (Cth), the applicant seeks a total of one weeks payment in lieu of notice upon termination.
In the circumstances, I accept that the applicant is entitled to payment in lieu of notice upon termination at a rate of $16.96 an hour for 38 hours (1 week), making a total of $644.48.
Accordingly, I am satisfied that the applicant is entitled to a payment in lieu of notice upon termination of $644.48.
Conclusion
On the evidence and material before me, I am satisfied that the applicant is entitled to unpaid wages of $5,993.71, overtime of $2,374.57, annual leave of $981.14, annual leave loading of $171.69 and payment in lieu of notice of termination of $644.48.
Accordingly, judgment should be entered for the applicant in the total sum of $10,165.59.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate:
Date: 21 March 2013
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