THETIOT v French Martini Pty Ltd
[2020] FCCA 255
•3 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THETIOT v FRENCH MARTINI PTY LTD | [2020] FCCA 255 |
| Catchwords: INDUSTRIAL LAW – SMALL CLAIMS – Restaurant Industry Award 2010 – Whether the applicant was employed on a part-time or casual basis – underpayment of wages and penalty rates – application allowed. |
| Legislation: Fair Work Act 2009 (Cth), s.45 Federal Circuit Court Rules 2001 (Cth), r.25.12 |
| Applicant: | OCEANE THETIOT |
| Respondent: | FRENCH MARTINI PTY LTD |
| File Number: | MLG 2805 of 2019 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 3 February 2020 |
| Date of Last Submission: | 3 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 3 February 2020 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the respondent: | No appearance |
| Solicitors for the respondent: | None |
ORDERS
THE COURT DECLARES THAT:
The respondent contravened section 45 of the Fair Work Act 2009 (Cth) and the Restaurant Industry Award 2010 (Cth) in failing to pay the applicant wages.
THE COURT ORDERS THAT:
The respondent pay to the applicant the sum of $2,893.80 in respect of unpaid wages and entitlements within 21 days.
AND THE COURT NOTES THAT:
(A)The respondent was called outside of court at 10:35am today and there was no response to the call.
(B)The applicant was granted leave to proceed on an undefended basis pursuant to rule 25.12 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2805 of 2019
| OCEANE THETIOT |
Applicant
And
| FRENCH MARTINI PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from the Transcript)
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for underpayment of wages and arises in the court’s small claims jurisdiction.
The applicant appeared on her own behalf. The respondent did not appear. The applicant provided evidence that she had served the respondent with the application by prepaid post to its registered office.[1] In those circumstances, I determined that it was appropriate to proceed to hear the matter today.
[1] Exhibit A.
The applicant’s case was that she was employed as a waitress by the respondent and was subject to the Restaurant Industry Award 2010 (“the Award”). She asserted that the appropriate classification for her role was as a Level 2 food and beverage attendant.
Having regard to the applicant’s evidence set out in her application as to the range of duties that she was engaged to perform, I accept that is the appropriate classification for her employment.
The applicant further stated that she was employed by the respondent from 10 September 2018 to 18 November 2018.
The applicant is originally from France and stated that she intended to return there shortly. As this was the first job that she had obtained since coming to Australia, she said she was unaware of the laws which regulated employment in this country.
The applicant stated that when she was initially employed by the respondent, she signed some paperwork and provided details of her superannuation fund. She was not provided with an employment contract or other relevant documentation about her terms and conditions of employment.
The applicant stated that her payslip records appeared to show she was employed on a part-time basis. However, she said that she was not employed on a regular basis and believed that the proper characterisation of her employment was that of a casual.
The applicant submitted that she did not receive:
a)payment for the casual rate of pay;
b)payment of a penalty rate for work after 10:00pm for shifts completed Monday to Friday;
c)weekend penalty rates as a casual employee; or
d)payment of overtime penalties for work performed on a Sunday.
The applicant produced photos of timesheets prepared by the respondent that were available for her at work. She stated that these timesheets confirmed her hours were irregular and that she often worked after 10:00pm from Monday to Friday.
In addition to providing photographs of the timesheets, the applicant produced handwritten notes of her hours of work which she said she kept to show the hours that she actually worked.
The applicant also produced payslips which show she was classified as a part-time employee. She was paid a base hourly rate of pay of $20.22, a Saturday hourly rate of $25.275, and a Sunday hourly rate of $30.33.
The applicant further stated she was not paid for the final week during which she worked. The applicant produced a calculation of the underpayment she claimed, which amounted to a total of $2,893.80.
The Award provides that an employee may be employed on a full-time basis, a part-time basis or a casual basis. In relation to part-time employment, it relevantly provides:
A part-time employee is an employee who is employed in a classification in Schedule B – Classification Structure and Definitions and who:
(a)is engaged to work at least 8 and less than 38 ordinary
hours per week or, where the employer operates a roster, an average of at least 8 and fewer than 38 hours per week over the roster cycle;
(b) has reasonably predictable hours of work; and
(c)receives, on a pro rata basis, equivalent pay and conditions
to those of full-time employees who do the same kind of work.[2][2] Restaurant Industry Award 2010, cl. 12.2.
Clause 12.3 goes on to say:
At the time of engagement the employer and the part-time employee will agree in writing upon:
(a)the number of hours of work which is guaranteed to be
provided and paid to the employee each week or, where the employer operates a roster, the number of hours of work which is guaranteed to be provided and paid to the employee over the roster cycle (the guaranteed hours); and
(b)the days of the week, and the periods in each of those days,
when the employee will available to work the guaranteed hours (the employee’s availability).[3]
[3] Restaurant Industry Award 2010, cl. 12.3.
Clauses 12.4 and 12.5 then say:
Any change to the guaranteed hours may only occur with the written consent of the part-time employee.[4]
…
The employer may roster the working of the employee’s guaranteed hours and any additional hours in accordance with clause 31.6, provided that:
[4] Restaurant Industry Award 2010, cl. 12.4.
(a)the employee may not be rostered for work for any hours
outside the employee’s availability;
(b)the employee must not be rostered to work in excess of
eleven and a half or less than 3 hours in a day; and
(c) the employee must have two days off each week.[5]
[5] Restaurant Industry Award 2010, cl. 12.5.
Clause 12.8 states:
All time worked in excess of:
(a)38 hours per week or, where the employee works in
accordance with a roster, an average of 38 hours per week over the roster cycle; or
(b) the maximum hours limitations specified in clause 31.2; or
(c) the employee’s rostered hours;
will be overtime and paid for at the rates prescribed in clause 33.2 – Overtime rates.[6]
[6] Restaurant Industry Award 2010, cl. 12.8.
Importantly for the purpose of this proceeding, clause 12.9 of the Award provides:
An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13.[7]
[7] Restaurant Industry Award 2010, cl. 12.9.
The applicant’s evidence was that she was not provided with any documentation at the commencement of her employment with the respondent. There was no evidence before the court of any agreement in writing as to the guaranteed hours of employment or the applicant’s work availability.
Accordingly, I find that the applicant, who is clearly not a full-time employee, does not fall within the definition of a part-time employee as specified in the Award.
Consequently, pursuant to clause 12.9, the applicant was entitled to be paid as a casual employee in accordance with clause 13 of the Award.
Clause 13 relevantly provides for the payment of a 25% loading and for certain restrictions on the number of hours per shift and per week that a casual can work.
In addition, clause 13.5 provides that any time worked in excess of those restrictions are to be paid overtime at the rates prescribed in clause 33.2.
Clause 33.2 provides that an employee will be paid overtime at the rate of:
a)1.5 times for the first two hours on a Monday to Friday, and double time thereafter;
b)1.75 times on Saturday for the first two hours and double time thereafter; and
c)double time on Sunday.
Clause 34.2 further provides that an employee, including a casual employee, who is required to work after 10:00pm on a Monday to Friday is entitled to an additional payment of 10% of the standard hourly rate per hour between 10:00pm and midnight.
The applicant provided a table setting out her hours of work, her hourly rate inclusive of the casual loading, and calculated various penalty payments and overtime payments on the basis of the hours worked.
As the respondent did not appear, those calculations were unchallenged.
On that basis, I accept the applicant’s calculation of her underpayment, having regard to my finding that she was a casual employee and therefore entitled to various penalties and other payments as outlined above pursuant to the Award.
In those circumstances, I find that the respondent has failed to pay the applicant according to the Award and the Fair Work Act 2009 (Cth).
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 3 February 2020
Key Legal Topics
Areas of Law
-
Civil Procedure
-
Commercial Law
Legal Concepts
-
Abuse of Process
-
Res Judicata
-
Stay of Proceedings
-
Costs
0
0
4