Zheng v Elliniki Kouzina Pty Ltd
[2025] FedCFamC2G 1173
•29 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zheng v Elliniki Kouzina Pty Ltd [2025] FedCFamC2G 1173
File number(s): SYG 952 of 2025 Judgment of: JUDGE KAUR-BAINS Date of judgment: 29 July 2025 Catchwords: INDUSTRIAL LAW – FAIR WORK – application for default judgment – where the first respondent has not provided an address for service and not complied with orders of the Court – consideration of rr 13.04(2) and 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) – alleged contraventions of ss 44, 45, 323(1) and 542(1) of the Fair Work Act 2009 (Cth) – upon admissions taken to have been made by reason of the first respondent’s default contraventions found and default judgment entered. Legislation: Fair Work Act 2009 (Cth), ss 12, 13, 14, 14(1), 44, 45, 61(1), 61(2), 61(2)(d), 87(2), 90(2), 139(1), 139(1)(f), 116B, 323(1), 539(2), 542(1), 544(b), 545(1), 545(2)(b), 546(1), 547(2), 570
Superannuation Guarantee (Administration) Act 1992 (Cth), s 46
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.06(3), 6.01, 6.01(1), 6.01(2), 6.08(1)(a)(i), 13.04(2)(a), 13.04(2)(b), 13.04(2)(b)(i), 13.04(2)(b)(iii), 13.04(2)(b)(iv), 13.05(2)(c), 17.05, items 13 and 15 of sch 1
Federal Court Rules 2011 (Cth), rr 16.07(1), 16.07(2) and 16.32
Cases cited: Fair Work Ombudsman v Grouped Property Services Pty Ltd(No 2) [2017] FCA 557
iNova Pharmaceuticals (Australia) Pty Ltd v Letos Group Pty Ltd [2022] FedCFamC2G 1052
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 4 July 2025 Place: Sydney Solicitor for the Applicant: Mr W Clarke of Marrickville Legal Centre Solicitor for the First Respondent: No appearance Solicitor for the Second Respondent: No appearance ORDERS
SYG 952 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZHIWEI (SIMON) ZHENG
Applicant
AND: ELLINIKI KOUZINA PTY LTD ACN 646 008 979
First Respondent
VANESSA LONGOBARDI
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
29 JULY 2025
THE COURT DECLARES THAT:
1.Upon admissions taken to have been made by reason of the first respondent’s default, the first respondent contravened:
(a)sections 323(1) and 542(1) of the Fair Work Act 2009 (Cth) (FW Act) in that it failed to pay the applicant his salary in full when the payments were due in the period from July 2024 to November 2024;
(b)section 44 of the FW Act in that it failed to pay the applicant his annual accrued leave;
(c)section 45 of the FW Act in that it failed to pay the applicant his annual accrued leave loading of 17.5%; and
(d)section 45 of the FW Act in that it failed to pay the applicant his superannuation contributions due and payable for the July 2024 quarter and October 2024 quarter by the due dates for contributions to the applicant’s nominated fund.
THE COURT ORDERS THAT:
2.Default judgment be entered for the applicant against the first respondent pursuant to r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) by reason of its failure to:
(a)give an address for service as required by r 6.01 of the Rules and order 1 of the Court’s orders dated 28 April 2025, constituting default within the meaning of rr 13.04(2)(b)(i), (iii), and (iv) of the Rules;
(b)appear at the directions hearing listed at 10am on 13 May 2025, constituting default within the meaning of r 13.04(2)(b)(iii) of the Rules; and
(c)appear at the default judgment hearings listed before me in person at 2:15pm on 30 June 2025 and at 10:15am on 4 July 2025, constituting default within the meaning of r 13.04(2)(b)(iii) of the Rules.
3.Pursuant to s 545(1) of the FW Act, within 21 days of the date of these orders, the first respondent pay as compensation to the applicant the amount of $15,949.63 comprising:
(a)$4,230.85 in respect of underpayment of wages due to the applicant from July 2024 to November 2024;
(b)$9,391.36 in respect of the applicant’s unpaid accrued annual leave; and
(c)$2,327.42 in respect of the applicant’s annual leave loading of 17.5%.
4.Pursuant to s 547(2) of the FW Act, the first respondent pay the applicant pre-judgment interest in the sum of $632.08.
5.The matter be set down at 10:15am on 21 August 2025 before me in Court 9.3, Level 9, 80 William Street, Woolloomooloo, NSW 2011 for the penalty and costs hearing.
6.The applicant serve on the first respondent a sealed copy of these orders together with the judgment and a copy of r 17.05 of the Rules by registered post to the registered office of the first respondent by 5pm on 29 July 2025.
7.The applicant serve on the first respondent a copy of the statement of claim together with the affidavit and outline of submissions by registered post to the registered office of the first respondent by 5pm on 29 July 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KAUR-BAINS
INTRODUCTION
By application in a proceeding filed on 2 June 2025 (default judgment application), the applicant seeks default judgment pursuant to subrules 13.04(2)(b) and 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), including declarations of contraventions, orders for compensation, penalties and pre-judgment interest under the provisions of the Fair Work Act 2009 (Cth) (FWAct) and costs against the first respondent.
The applicant’s claims arose in the context of his employment under a written contract dated 10 June 2024 with the first respondent (Employment Contract) as a Sous Chef at PLOOS Restaurant at 7-27 Circular Quay West, The Rocks (Restaurant). The applicant claimed that:
(a)he was underpaid salary in the sum of $4,230.85 from July 2024 to November 2024;
(b)he was not paid accrued annual leave in the sum of $9,391.36;
(c)he was not paid annual leave loading of 17.5% in respect of annual leave in the sum of $2,327.42; and
(d)he was not paid superannuation due and payable for the July 2024 quarter and October 2024 quarter by the due dates for contributing to the applicant’s nominated fund.
The applicant alleged the second respondent, at all material times, was the authorised representative and senior manager of the first respondent. The applicant alleged that the second respondent is personally liable for the alleged contraventions engaged in by the first respondent and for orders relating to compensation, interest and pecuniary penalties. The applicant has not served the second respondent with the current proceedings and default judgment is not sought at this time against the second respondent.
PROCEDURAL HISTORY
On 2 April 2025, the applicant filed an application in the Fair Work Division of this Court (application), together with a statement of claim.
In an affidavit of service sworn on 22 April 2025 by Mr Joseph Khoury (Mr Khoury), a licensed process server, (Khoury affidavit), Mr Khoury stated that on 11 April 2025 at 2:58pm, he attended the office of Westwood Accountants & Advisors at 61 Kingsway, Kingsgrove (Westwood Accountants) and had a conversation with a staff member, who identified herself as “Juliette”. Juliette confirmed that Westwood Accountants was the registered office for the first respondent and said she would accept the application and statement of claim and pass those documents to the director or proper officer of the first respondent. I note that r 6.08(1)(a)(i) of the Rules permit service by hand on a corporation at the registered office of the corporation.
First court date – 28 April 2025
The matter came before me for a first court date on 28 April 2025. At that time, the matter was called three times outside the courtroom and there was no appearance for the first respondent. Mr William Clarke (Mr Clarke) from Marrickville Legal Centre (MLC) appeared for the applicant, and brought my attention to a change of company details for the first respondent that had been lodged at the Australian Securities & Investments Commission (ASIC) on 15 April 2025 at 11:12am. Relevantly, an ASIC Form 484 recording the change to the first respondent’s company details was included in the affidavit of service sworn by Mr Sebastian Gray, a Law Graduate at MLC, on 9 May 2025 and filed on the same day (Gray affidavit, pp 23 and 24).
The ASIC Form 484 recorded that the first respondent’s registered address was changed to “Unit 37, 65 Marigold Street, Revesby, NSW 2212, Australia”. The ASIC Form 484 noted at “A1 Change of Address” that “a change to the registered office address takes effect either 7 days after lodgement of the notice or a later date specified in the notice” (emphasis added). The effective date noted on the ASIC Form 484 was 11 April 2025, being 4 days before the lodgement date of the form, which was noted as being on 15 April 2025. Therefore, I am satisfied that as at the date of personal service of the application and the statement of claim on 11 April 2025, the registered address for the first respondent was at the office of Westwood Accountants, at which place the first respondent was served with the said documents.
On 28 April 2025, I made the following orders:
1.The First Respondent file a Notice of Address for Service on or before 9 May 2025.
2.The matter be listed for directions before Judge Kaur-Bains at 10am on 13 May 2025.
3.The Applicant serve a copy of these orders on the First Respondent at the new registered office by registered post by 5pm 29 April 2025.
13 May 2025
This matter came back before me at 10am on 13 May 2025 for a directions hearing. At that time, the matter was called three times outside the courtroom and there was no appearance for the first respondent. I was satisfied from the contents of the Gray affidavit that a copy of my orders dated 28 April 2025 was served by express post on the first respondent (Gray affidavit, pp 4 to 6).
The Gray affidavit also enclosed an email sent on 15 April 2025 from Ms Juliet Van Leent (Ms Leent) of Westwood Accountants to Mr Clarke, stating that she was returning the documents (referring to the application and statement of claim), as she alleged it had not been served on the correct address given there had been a change to the company details for the first respondent, and enclosed the ASIC change of company details (Gray affidavit, pp 8 to 24).
In response, Mr Clarke sent an email to Ms Leent on 22 April 2025, stating that the court documents had been served on the correct registered address because as at the date of service, being 11 April 2025, Westwood Accountants was noted as the registered address of the first respondent (Gray affidavit, pp 7 to 24).Westwood Accountants did not respond to Mr Clarke’s email.
On 13 May 2025, I made the following orders:
1.The Applicant to file and serve on the First Respondent an Application in the Proceedings for default judgment and seeking amendment to the Application and the Statement of Claims and any supporting affidavits and written submissions by 4pm on 2 June 2025.
2.The First Respondent file any affidavits or submissions in response by 4pm on 23 June 2025.
3.The Applicant serve a copy of these Orders on the First Respondent at the new registered office by registered post by 15 May 2025.
4.The Applicant serve a copy of any documents filed in accordance with order 1 on the First Respondent at the new registered office by registered post.
5.The Application in the Proceedings filed pursuant to Order 1 is listed for hearing before me in person at 2.15pm on 30 June 2025.
30 June 2025
The matter came back before me at 2:15pm on 30 June 2025. At that time, the matter was called three times outside the courtroom and there was no appearance for the first respondent. I made orders that the application in the proceedings for default judgment be listed at 10:15am on 4 July 2025. On 3 July 2025, Ms Sophie Driver, solicitor of MLC, filed an affidavit of service on behalf of the applicant, noting that she posted a copy of my orders made on 30 June 2025 to the first respondent at the address of the new registered office by express post, informing the first respondent that the matter was listed before me at 10:15am on 4 July 2025.
DEFAULT JUDGMENT
The default judgment application came before me for hearing at 10:15am on 4 July 2025. At that time, the matter was called three times outside the courtroom and there was no appearance for the first respondent. In support of the default judgment application, the applicant relied on the affidavit of the applicant affirmed on 30 May 2025 (Applicant affidavit), which was read into evidence. The applicant also relied on written submissions filed on 2 June 2025. Mr Clarke supplemented the submissions by oral submissions.
Relevant legislative provisions for default judgment
The Rules relevantly provide:
6.01 Address for service
(1) A party to a proceeding must give an address for service.
(2) A party may give an address for service:
(a) by filing a relevant document that includes an address for service; or
(b) by filing a notice of address for service in accordance with the approved form.
….
13.04 When a party is in default
…
(2) For the purposes of rule 13.05, a respondent is in default if the respondent:
(a) has not satisfied the applicant's claim; and
(b) fails to:
(i) give an address for service before the time for the respondent to give an address has expired; or
(ii) file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
13.05 Orders on default
…
(2) If a respondent is in default, the Court may:
…
(c) if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings--give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant; or
…
The Federal Court Rules 2011 (Cth) relevantly provide:
16.07 Admissions, denials and deemed admissions
(1) A party pleading to an allegation of fact in another party’s pleading must specifically admit or deny every allegation of fact in the pleading.
(2) Allegations that are not specifically denied are taken to be admitted.
…
16.32 Defence to application
A respondent must file a defence, in accordance with Form 33, within 28 days after service of the statement of claim.
The rules in the preceding paragraph [16] are applied in this Court, by virtue of r 1.06(3) and items 13 and 15 of sch 1 to the Rules.
CONSIDERATION
Whether the first respondent is in default?
For the reasons set out at [4] to [7] of this judgment, I am satisfied that the application and the statement of claim were served personally on the first respondent on 11 April 2025 at its registered address recorded at ASIC.
I also find that the first respondent has failed to file a notice of address for service in accordance with r 6.01 of the Rules and order 1 made on 28 April 2025 referred to at [8] of this judgment. Further, given the matters set out at [9] and [13] of this judgment, I find that the first respondent failed to appear at the directions hearing listed at 10am on 13 May 2025 and at the default judgment hearing listed at 2:15pm on 30 June 2025. Further, the first respondent has failed to appear today despite having been served with notice of today’s hearing. In the circumstances, I am satisfied that the first respondent is in default for the purposes of rr 13.04(2)(a), 13.04(2)(b)(i), 13.04(2)(b)(iii) and 13.04(2)(b)(iv) of the Rules.
Whether default judgment be entered and declarations be made?
Relevant legal principles
The relevant legal principles applicable to default judgments are helpfully set out in the decision of His Honour Judge Manousaridis in iNova Pharmaceuticals (Australia) Pty Ltd v Letos Group Pty Ltd [2022] FedCFamC2G 1052 at [109] to [119] as follows (footnotes omitted):
Nature and scope of r 13.05(2)(c) of the GFL Rules
109Rules 13.04 and 13.05(2)(c) of the GFL Rules were adapted from, and are substantially similar to, the rules contained in O 35A of the now repealed Federal Court Rules 1979 (Cth) (old FC Rules); and r 13.05(2)(c) of the GFL Rules is almost identical to O 35A r 3(2).
110Before O 35A was introduced into the old FC Rules in 2004, the Federal Court could enter default judgment against a respondent only if an application for default judgment was supported by admissible evidence that proved the applicant’s claims for relief. In Australian Securities Commission v MacLeod & Ors Drummond J described this limitation in the old FC Rules by reference to the rules of other courts which had as their source the rules of court of the English High Court after the passing of the Judicature Acts:
This rule (and other Federal Court Rules which permit the making of the same orders where a respondent is in default in complying with other procedural requirements, eg, O 11, r 23; O 15, r 16 and O 16, r 9) differs from provisions found in the rules of other courts which are derived from the post-Judicature Act rules of the English High Court. In certain classes of action, eg, where the plaintiff's claim was for a liquidated demand, the rules of other courts allowed the plaintiff to enter judgment by the ministerial act of a court official and without the intervention of the court; but the general rule empowered the entry of such judgment in default as the plaintiff appeared entitled to on his statement of claim. Initially there was some uncertainty as to whether on an application under English O 27, r 11 (the rule permitting judgment in default of defence), proof of the facts alleged in the statement of claim was required. It appears that late in the 1880s, a meeting of the judges resolved that, on such an application, the court should not receive evidence but should give judgment on the statement of claim alone: see Smith v Buchan (1888) 58 LT 710. From this time, it was firmly established that, on a motion for judgment in default, the plaintiff was not required (or entitled) to produce any evidence in support of the allegations in the statement of claim: see Young v Thomas [1892] 2 Ch 134, where Bowen LJ identified the justification for the practice: the defendant's failure to plead amounted to an admission of the facts in the statement of claim. The English practice thus proceeded on the basis that evidence was required on a motion for judgment in default of defence, but that that evidence was to be found, and found only, in the defendant's admission of the facts alleged in the statement of claim constituted by his failure to plead to them.
111The purpose of the addition to the old FC Rules of O 35A r 3(2)(c), therefore, was to include in the old FC Rules a rule to the effect that had been used in State and Territory courts for years that authorised the entry of default judgment on the assumption that the defaulting respondent has admitted the allegations of fact made in the statement of claim.
112There are a number of matters to note about r 13.05(2)(c) of the GFL Rules. First, and consistently with the purpose for which O 35A r 3(2)(c) was introduced into the old FC Rules, r 13.05(2)(c) “does not require proof of the claim by evidence, but only requires that – on the face of the statement of claim – there is a claim for the relief sought”.
113Second, before the Court may make an order under r 13.05(2)(c) of the GFL Rules it must be satisfied that the document which the applicant has filed with the application is in fact a “statement of claim”. A statement of claim is a pleading, which means it must comply with the rules of pleading. Thus, for example, the purported statement of claim must “state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved”. Here, “material facts” are facts whose existence is “necessary for the purpose of formulating a complete cause of action”. A “cause of action”, in turn, is “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”. Another example of a rule of pleading is that the statement of claim must not allege “conclusions drawn from unstated facts”.
114Third, it follows from what I have said in the previous paragraph that the statement of claim must plead at least one reasonable cause of action that supports the granting of the relief the applicant seeks in the application. More particularly, “each element of the relevant civil wrong” of which the applicant complains must be “properly and discretely pleaded in the statement of claim”.
115Fourth, although r 13.05(2)(c) of the GFL Rules does not require proof of the claim by evidence, it is permissible for the applicant to adduce evidence that is relevant to the relief sought. That point was made by Lord Woolf MR in Phonographic Performance Ltd v Maitra:
It is clear from the terms of O19, r 7 and para 19/7/10 that judgment in default is given upon the facts pleaded in the statement of claim and that affidavit evidence to supplement or support those facts is not appropriate as the pleaded facts are deemed to be admitted. However, that cannot be rigidly applied where the judge has to exercise a discretion whether to grant the relief sought. Where an injunction is sought facts relevant to the grant of that injunction, which are not deemed to be admitted, should be brought to the attention of the judge by way of affidavit or otherwise. Further, if the judge is aware of matters relevant to the exercise of his discretion, he can seek an appropriate explanation before coming to any decision.
116It has been confirmed that it is permissible on an application for an order under O 35A r 3(2)(c) of the old FC Rules to adduce evidence relevant to relief. In Australian Competition and Consumer Commission v Dataline.Net.Au Pty Limited, Kiefel J (as her Honour then was) said:
It may be accepted that some further affidavit material may be accepted by the Court in relation to the relief sought. . . . Evidence which would alter the pleaded case should not be admitted. . . . Regard should not be had to evidence of facts which could have been, but were not, pleaded concerning the conduct of the respondents.
117Fifth, there is the question of the approach that should be taken to construing the statement of claim. The question of construction of a statement of claim was considered by the Court of Appeal of the Supreme Court of New South Wales in Penthouse Publications Ltd v McWilliam in the different context of an application to strike out a statement of claim. Priestley JA, with whose reasons Meagher JA and Waddell AJA agreed, gave a “liberal construction to the plaintiff’s statement of claim”. His Honour was of the view that a statement of claim would be given a liberal construction by answering the question of what a “demurring” party will be taken to accept when that party claims the statement of claim discloses no reasonable cause of action. His Honour said that a demurring party “is in the position not only of having to accept the truth of all allegations in the statement of claim, but also the truth of the ranges of meaning of the assertions of fact in the statement of claim which those assertions are reasonably capable of bearing”. I will follow this approach in the context of an application for an order under r 13.05(2)(c) of the GFL Rules.
118Also relevant to construing a statement of claim is the principle that “[p]articulars control the generality of the pleadings”. That means that the generality of an allegation contained in the statement of claim will be limited by any particulars appended to that allegation.
119Finally, the Court retains a discretion not to make an order under r 13.05(2)(c) of the GFL Rules even if the preconditions for making an order are satisfied.
As noted above, r 13.05(2)(c) of the Rules, gives the Court a discretion to give default judgment against the first respondent and grant relief, if satisfied that the applicant has filed a statement of claim which complies with the rules of pleadings and discloses at least one reasonable cause of action that supports the granting of the relief sought in the application.
In this case, the applicant also relied on his affidavit (referred to at [14] of this judgment), which was admitted on the basis that it was relevant to the relief sought. I note that the matters set out in the Applicant’s affidavit did not alter the pleaded case as set out in the statement of claim.
For the reasons that follow, I am satisfied that the statement of claim complies with the rules of pleading so it properly answers the description of being a statement of claim and pleads causes of action that support the granting of relief by way of orders on default.
Allegations in the statement of claim
The allegations against the first respondent in the statement of claim are set out in the following paragraphs.
The applicant was a national system employee within the meaning of section 13 of the FW Act, and between approximately 15 August 2022 and 11 November 2024 was employed as a chef at PLOOS Restaurant by the first respondent.
The first respondent was a corporation registered in accordance with the Corporations Act 2001 (Cth) and was a constitutional corporation within the meaning of s 12 of the FW Act, as well as a national system employer within the meaning of s 14 of the FW Act.
On or about 15 August 2022, pursuant to a verbal agreement with James Roberts, head chef of the first respondent, the applicant commenced employment with the first respondent as a chef at the Restaurant and the employment continued with the first respondent whereby:
(a)the applicant was employed on a full-time basis;
(b)the applicant was required to work as directed and to be flexible and work reasonable additional overtime;
(c)the Restaurant Industry Award (2020) (Award) applied to his employment;
(d)the applicant would receive remuneration in the form of wages and allowances (namely $65,000 and superannuation); and
(e)a paper contract would be given to the applicant for signature.
Pursuant to clause B.3.7 of Schedule B of the Award, the applicant was employed as a Cook Grade 4 employee, namely a ‘demi chef or equivalent’.
From February 2023 the applicant was classified as a ‘chef de partie’ on his payslips. Pursuant to clause B.3.8 of Schedule B of the Award, the applicant was employed as a cook Grade 5 level, namely a ‘chef de partie or equivalent’.
In September 2023, James Roberts increased the applicant’s salary to $70,000 and verbally advised the applicant that this increase had been approved by Bill Gertos, a person then known to the applicant as the first respondent’s director.
The first respondent did not provide a written contract or agreement to the applicant at any time prior to June 2024.
On 10 June 2024, the applicant and the first respondent entered into a written contract whereby, inter alia:
(a)the applicant was ‘employed on a full-time basis as Sous Chef';
(b)the Award applied to his employment; and
(c)the applicant would receive remuneration in the form of wages and allowances in the sum of $80,000 per year and superannuation.
From 10 June 2024, the first respondent failed to pay the applicant his remuneration of $80,000 per year (or $1,538.46 per week gross) and continued to pay the applicant at the rate of $70,000 per year (or $1,346.15 per week gross).
On 8 November 2024, the applicant by letter to the second respondent, noted that there had been continued non-payment of the new Employment Contract salary over 5 months, formally resigned from his employment with the first respondent effective on 10 November 2024.
Since the termination of the applicant’s employment, the applicant has not been paid any amounts by the first respondent, including accrued annual leave and leave loading.
Given that the first respondent has not filed a defence, the allegations of fact referred to at [25] to [35] of this judgment, as pleaded in the statement of claim, are taken to be admitted pursuant to the rules referred to at [16] and [17] of this judgment.
I am satisfied that the discretion to order default judgment should be exercised in this case as the first respondent has failed to engage in the court process, despite being on notice of the proceedings and hearing dates, and if permitted to continue not to participate in the proceedings, will effectively prevent the applicant obtaining justice. I will now turn to consider each alleged contravention.
Contraventions
Unpaid salary
The applicant alleged in the statement of claim that the first respondent contravened ss 323(1) and 542(1) of the FW Act by failing to pay the applicant’s annual salary in the amount of $80,000 as agreed in the Employment Contract.
The applicant had been working for the first respondent at the Restaurant since August 2022 on an oral agreement at an initial annual salary of $65,000, which was subsequently increased to $70,000 in September 2023. By the Employment Contract dated 10 June 2024, the applicant entered into the contract with the first respondent that applied the Award as amended in June 2023 (Applicant affidavit, pp 9 to 15). Clauses 1.1 to 1.3, and 4.1 of the Employment Contract provided as follows (Applicant affidavit, pp 9 and 10):
1.1 The employee is employed under the Restaurant Industry Award 2023.
1.2 The employee is employed on a full-time basis as Sous Chef. The employee is required to perform the normal duties and responsibilities associated with this role.
1.3 The employer may change these duties and responsibilities during the course of the employment, after consultation with the employee.
…….
4.1 The employee will receive an annual salary of $80,000 per year excluding superannuation). This will be paid to the employee [weekly by electronic funds transfer].
Despite the terms of the Employment Contract, the applicant affirmed at [6] of the applicant’s affidavit that he was not paid the increased salary but was paid at his previous salary level of $70,000 until his resignation in November 2024.
I note that there were a number of text messages between the applicant and the second respondent (text messages) (Applicant affidavit, pp 17 to 20). In those text messages, the second respondent appeared to accept that the first respondent had not paid the applicant the increased wage of $80,000 annually, but rather paid the wages at the previous level of $70,000 annually.
Section 12 of the FW Act defines “safety net contractual entitlement” as an entitlement under a contract between an employee and an employer that relates to matters listed in ss 61(2) (National Employment Standards) and 139(1) (Modern Awards of the FW Act). Relevantly, Mr Clarke referred me to s 139(1) of the FW Act, which applies to the applicant’s contract with the first respondent as he was employed under the Award. Section 139(1) of the FW Act provides that a modern award may include terms about:
(a) minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply), and:
…
(ii) incentive‑based payments, piece rates and bonuses;
...
(f) annualised wage arrangements that:
(i) have regard to the patterns of work in an occupation, industry or enterprise; and
(ii) provide an alternative to the separate payment of wages and other monetary entitlements; and
(iii) include appropriate safeguards to ensure that individual employees are not disadvantaged;
(g) allowances, including for any of the following:
…
(ii) responsibilities or skills that are not taken into account in rates of pay; (emphasis added)
The applicant pleaded in the statement of claim that it was agreed between the applicant and the first respondent that the applicant would receive an annual salary of $80,000 as part of the Employment Contract. This would be a safety net contractual entitlement as part of the applicant’s annualised wage arrangements pursuant to s 139(1)(f) of the FW Act.
On the admissions, I am satisfied that pursuant to s 14(1) of the FW Act, the first respondent is a national system employer and the applicant is a national system employee.
I am also satisfied on the admissions that the first respondent has underpaid the applicant his wage entitlements. Accordingly, for the purposes of default judgment, I find that there is a contravention of s 542(1) of the FW Act. I note that the applicant’s application for an order in relation to the contravention was brought within time pursuant to s 544(b) of the FW Act.
For the purposes of default judgment, I am also satisfied that there is a contravention of s 323(1) of the FW Act by the first respondent failing to pay the applicant for his work. Relevantly, s 323(1) of the FW Act provides as follows:
323 Method and frequency of payment
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:
…
(c) at least monthly.
The Applicant’s affidavit at [11] calculated the underpayment of wages to be in the sum of $4,230.85 for the period July 2024 to November 2024. For the purposes of default judgment, I am satisfied this is the sum of the underpayment of wages.
Accrued annual leave
The applicant alleged in the statement of claim that the first respondent failed to pay his accrued annual leave entitlements under s 90(2) of the FW Act in the amount of $9,391.36, thereby contravening s 44 of the FW Act. Mr Clarke submitted that such amount was calculated on an hourly rate based on the annual salary of $80,000.
Clause 7.1 of the Employment Contract provides as follows:
7.1 The employee is entitled to 4 weeks' annual leave per year as per the Act. Annual leave is cumulative.
Sections 87(2) of the FW Act in relation to accrued annual leave provides as follows:
(2)An employee’s entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work, and accumulates from year to year.
Pursuant to s 61(1) of the FW Act, the National Employment Standards (NES) are the minimum standards that apply to the employment of employees, which includes an employee’s annual leave under s 61(2)(d). Section 44 of the FW Act provides that an employer must not contravene a provision of the NES. Section 90(2) of the FW Act further provides that if the employee has untaken paid annual leave upon termination of the employment, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that leave.
Relevantly, for the calculation of the accrued annual leave, the applicant’s entire employment history with the first respondent needs to be considered. The applicant first commenced working with the first respondent in August 2022 (Applicant affidavit at [1]) and ceased working with the first respondent on 8 November 2024, when he handed his letter of resignation (Applicant affidavit from [2] to [8]). The applicant said that over the entire period of his employment, he accrued 338 hours and took 106 hours of leave, which left him with an accrued 232 hours of leave (Applicant affidavit at [13]). The applicant at [13] of his affidavit deposed to the fact that he did not take this accrued leave.
For the purposes of default judgment, I am satisfied that the sum of $9,391.36 equates to unpaid accrued annual leave. Accordingly, I find that the first respondent contravened s 44 of the FW Act and the sum owing is $9,391.36.
Leave loading of 17.5%
The applicant alleged in his statement of claim that the first respondent failed to pay a total annual leave loading of $2,327.42, thereby contravening s 45 of the FW Act. Mr Clarke submitted that such amount was calculated based on 17.5% of the amount of accrued annual leave, both accrued and taken, that the first respondent was required to pay the applicant.
Mr Clarke referred me to clause 25.3 of the Award, which provides as follows:
25.3 Payment for annual leave
An employer must pay an employee a loading of 17.5% on the amount payable to the employee under the NES for a period of paid annual leave, including a period of untaken paid annual leave when the employment of the employee ends.
For the purposes of default judgment, I am satisfied that the first respondent contravened s 45 of the FW Act by failing to pay the applicant his annual leave loading in the sum of $2,327.42.
Superannuation contribution
The applicant pleaded that the first respondent contravened s 45 of the FW Act by failing to make superannuation contributions on time.
Clause 4.2 of the Employment Contract provides that:
4.2The employer will pay the superannuation guarantee levy to a designated superannuation fund of their choice.
Mr Clarke submitted that both s 116B of the FW Act and cl 22.2 of the Award require the first respondent to make contributions to a superannuation fund for the benefit of the applicant as an employee in order to avoid liability to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 (Cth) in relation to the employee. Pursuant to s 46 of the Superannuation Guarantee (Administration) Act 1992 (Cth), the due date for the applicant’s superannuation contributions for the July 2024 quarter and for the October 2024 quarter were 28 November 2024 and 28 February 2025 respectively.
At [16] of the Applicant affidavit, the applicant affirmed that:
16. On 17 April 2025 my super fund received contributions from the First Respondent of $1,727.49 and on 15 May 2025 further contributions of $2,138.98 being for the period I was employed by the First Respondent from July to November 2024. Annexed hereto and marked "F" is a copy of the advice of these contributions by the First Respondent from my super fund, which leaves a deficit of $26.83.
The applicant does not seek payment of the sum of $3,893.30 as superannuation payments, as there has been payment of $3,866.47 by the first respondent to the applicant’s nominated fund. Rather, the applicant seeks a declaration of contravention of s 45 of the FW Act.
For the purposes of default judgment, I am satisfied that the first respondent paid the applicant’s superannuation contributions after the required due dates.
RELIEF SOUGHT
Declarations
The applicant seeks declarations that the first respondent contravened the following civil remedy provisions in the FW Act:
(a)sections 323(1) and 542(2) by failing to pay the applicant his annualised salary in full for the period from July 2024 to November 2024;
(a)sections 44 by failing to pay the applicant his accrued annual leave entitlements under section 90(2) of the Act on his employment ending;
(b)section 45 by failing to pay annual leave loading within 7 days of the applicant’s employment terminating; and
(c)section 45 by failing to make superannuation contributions to the applicant’s superannuation fund on the due dates.
Orders for compensation and penalties
In this application for default judgment, the applicant seeks orders that the first respondent pay the following amounts of compensation pursuant to s 545(2)(b) of the FW Act:
(a)$4,230.85 to the applicant in respect of underpaid wages due to the applicant from July 2024 to November 2024;
(b)$9,391.36 to the applicant in respect of his unpaid accrued annual leave; and
(c)$2,327.42 to the applicant in respect of his annual leave loading of 17.5% payable in respect of annual leave.
Further, the applicant seeks the following orders:
(a)the first respondent pay the applicant pecuniary penalties in respect of each of the contraventions of the civil remedy provisions pursuant to ss 539(2) and 546(1) of the FW Act;
(b)the first respondent pay the applicant’s costs pursuant to s 570 of the FW Act;
(c)the amounts of compensation, interest, pecuniary penalties and costs made under the preceding orders be paid within 28 days of the order; and
(d)the applicant has liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
Pre-judgment interests
The total interest being sought is $632.08 pursuant to s 547(2) of the FW Act, which provides that in making an order, the Court must include the amount of interest in the sum ordered unless the contrary is stated. In Fair Work Ombudsman v Grouped Property Services Pty Ltd(No 2) [2017] FCA 557 at [378], the Federal Court said:
378Section 547 of the FW Act makes provision for pre-judgment interest on any amount a party is required to pay under the Act except for a pecuniary penalty. In making an order for the payment of such an amount, the Court must, on application, include interest, unless good cause is shown to the contrary: s 547(2). In determining the amount of interest, the Court is obliged to take into account the period between the day the relevant cause of action arose and the day the order is made: s 547(3).
The pre-judgment interest rate has been set at 8.35% since 1 January 2024, covering the entire period of the applicant's claims. The applicant claimed the sum of $632.08, calculated from the date of resignation (8 November 2024) to court hearing, being 263 days. For the purposes of default judgment, I am satisfied as to the calculation of pre-judgment interest and that it is payable to the applicant.
CONCLUSION
For the reasons set out above, I am of the view that default judgment be entered against the first respondent in accordance with r 13.05(2)(c) of the Rules.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 29 July 2025
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