Ross v Paea trading as Bombora Cafe [2020] FCA 766

FEDERAL COURT OF AUSTRALIA

Ross v Paea trading as Bombora Café [2020] FCA 766 File number: NSD 1476 of 2019

Judge: PERRAM J

Date of judgment: 3 June 2020

Catchwords: INDUSTRIAL LAW – where Applicant employed as cook by First Respondent – where Applicant claims unpaid wages, annual leave, taxation and superannuation under Fair Work Act 2009 (Cth)('the Act') – whether the Restaurant Industry Award 2010 applies to First Respondent – whether First Respondent is employer under s 47 of the Act – whether First Respondent contravened the Act SUPERANNUATION – whether employee can sue employer where employer fails to make superannuation contributions to complying fund – nature of compulsory superannuation laws as tax in constitutional sense BANKRUPTCY – where First Respondent has filed for bankruptcy prior to Court reserving judgment – whether leave granted to Applicant to proceed under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) – where Court has already heard evidence in the case – where trustee of bankrupt estate neither agrees nor objects to leave being granted PRACTICE AND PROCEDURE – where Applicant assisted by unadmitted acquaintance who appears to have been holding himself out as lawyer – whether judgment reasons should be referred to Law Society of New South Wales

Legislation: Constitution ss 51(ii), 51(xx), 51(xxxi), 51(xxxvii), 55, 122 Bankruptcy Act 1966 (Cth) s 58(3)(b) Evidence Act 1995 (Cth) s 29(2) Fair Work Act 2009 (Cth) ss 30H, 30N, 30L, 42, 44, 45, 46, 47, 61, 87, 90, 539, 545 Federal Court of Australia Act 1976 (Cth) s 51A(1) Superannuation Guarantee Charge Act 1992 (Cth) ss 3, 5, 6 Superannuation Guarantee (Administration) Act 1992 (Cth) ss 17, 19, 23, 33, 34, 36, 46, 65 Taxation Administration Act 1953 (Cth) s 18-15 of Sch 1 Restaurant Industry Award 2010 cl 4, 20, 35 Industrial Relations (Commonwealth Powers) Act 2009 (NSW) ss 3, 5 Legal Profession Uniform Law (NSW) s 10(1)