Air Work Ombudsman v AJSJ Pty Ltd - [2014] FCCA 902

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v AJSJ PTY LTD & ANOR

[2014] FCCA 902

Catchwords:
INDUSTRIAL LAW – Underpayment of wages – hospitality industry – foreign employee – construction of award – collective agreement – whether the employer had knowledge of the employee’s qualifications – whether the employee’s qualifications were relevant – nature of the employee’s duties – failure by employer to pay correct wage – contraventions made out.

Legislation:

Evidence Act 1995 (Cth), s.79

Workplace Relations Act 1996 (Cth), ss.347, 717, 719, 728

Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426
Dowling v Kirk [2007] FMCA 2106
Fair Work Ombudsman v McGrath [2010] FMCA 315
Jones v Dunkel (1959) 101 CLR 298
Kucks v CSR Ltd (1996) 66 IR 182
Potter v Fair Work Ombudsman [2014] FCA 187
Yorke v Lucas (1985) 158 CLR 661

Macquarie Dictionary (Macquarie, 3rd ed, 1997)

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

AJSJ PTY LTD

Second Respondent:

JASBIR KAUR GHAG

File Number:

BRG 1156 of 2011

Judgment of:

Judge Burnett

Hearing dates:

22, 23 and 26 July 2013

Date of Last Submission:

26 July 2013

Delivered at:

Brisbane

Delivered on:

14 May 2014

REPRESENTATION

Counsel for the Applicant:

Mr A. James

Solicitors for the Applicant:

Fair Work Ombudsman

Solicitors for the First Respondent:

Solicitors for the Second Respondent:

Milner Lawyers

ORDERS

THE COURT DECLARES THAT:

The First Respondent contravened:
(a)Clause 15, in conjunction with clause 17, of the Rue de Paris Collective Agreement 2006; and
(b)Clause 6 of the Rue de Paris Collective Agreement 2006;
which are “applicable provisions” for the purposes of s.718 of the Workplace Relations Act 1996 (Cth).
The Second Respondent was involved in the contraventions of the First Respondent referred to in Order 1 within the meaning of s.728 of the Workplace Relations Act 1996 (Cth).

THE COURT DIRECTS THAT:

The matter be listed for a penalty hearing for not more than one (1) day in the Federal Circuit Court of Australia sitting at Brisbane on a date to be advised.
The Applicant file and serve upon the Respondents any submissions and/or evidence it intends to rely upon in respect of penalty twenty-one (21) days prior to hearing.
The Respondents file and serve upon the Applicant any submissions and/or evidence it intends to rely upon in respect of penalty fourteen (14) days prior to hearing.
The Applicant file and serve upon the Respondents any submissions and/or evidence in reply in respect of penalty seven (7) days prior to hearing.
The parties have liberty apply.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1156 of 2011

FAIR WORK OMBUDSMAN

Applicant

And

AJSJ PTY LTD

First Respondent

JASBIR KAUR GHAG

Second Respondent

REASONS FOR JUDGMENT

Introduction

Between about 24 October 2007 and 5 April 2008, AJSJ Pty Ltd (“the Employer”) employed Ms Akiko Sagi as a cook in its Milton restaurant, Rue de…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 902
Decision Date: 14 May 2014

CaseChat Overview and Summary

The Air Work Ombudsman, as applicant, brought proceedings against AJSJ Pty Ltd and another respondent (collectively, the respondents) concerning alleged underpayment of wages within the hospitality industry. The dispute centred on the correct wage to be paid to a foreign employee, with the applicant alleging contraventions of a collective agreement and relevant legislation. The matter was heard by Judge Burnett in the Federal Circuit Court of Australia.

The court was required to determine whether AJSJ Pty Ltd had contravened specific clauses of the Rue de Paris Collective Agreement 2006, which were deemed applicable provisions under section 718 of the Workplace Relations Act 1996 (Cth). Specifically, the court had to consider whether the employer's knowledge of the employee's qualifications, and the relevance of those qualifications to the duties performed, impacted the determination of the correct wage. Furthermore, the court needed to ascertain if the second respondent was involved in the alleged contraventions by the first respondent, within the meaning of section 728 of the Act.

Judge Burnett found that the first respondent had contravened clauses 15 and 17, as well as clause 6, of the Rue de Paris Collective Agreement 2006. The reasoning focused on the nature of the employee's duties and the employer's failure to pay the correct wage, irrespective of whether the employer had knowledge of the employee's specific qualifications or whether those qualifications were deemed relevant. The court concluded that the second respondent was involved in these contraventions.

Consequently, the court declared that the respondents had contravened the specified provisions of the collective agreement and the Workplace Relations Act 1996. The matter was listed for a penalty hearing in the Federal Circuit Court of Australia, with directions given for the filing and service of submissions and evidence by both parties in relation to the penalty.

Orders

Orders of the court

THE COURT DECLARES THAT:

1. The First Respondent contravened:

(a) Clause 15, in conjunction with clause 17, of the Rue de Paris Collective Agreement 2006; and

(b) Clause 6 of the Rue de Paris Collective Agreement 2006;

which are “applicable provisions” for the purposes of s.718 of the Workplace Relations Act 1996 (Cth).

2. The Second Respondent was involved in the contraventions of the First Respondent referred to in Order 1 within the meaning of s.728 of the Workplace Relations Act 1996 (Cth).

THE COURT DIRECTS THAT:

3. The matter be listed for a penalty hearing for not more than one (1) day in the Federal Circuit Court of Australia sitting at Brisbane on a date to be advised.

4. The Applicant file and serve upon the Respondents any submissions and/or evidence it intends to rely upon in respect of penalty twenty-one (21) days prior to hearing.

5. The Respondents file and serve upon the Applicant any submissions and/or evidence it intends to rely upon in respect of penalty fourteen (14) days prior to hearing.

6. The Applicant file and serve upon the Respondents any submissions and/or evidence in reply in respect of penalty seven (7) days prior to hearing.

7. The parties have liberty apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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