Awwad v Vic Solar Technologies Pty Ltd - [2020] FCCA 2838

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWWAD v VIC SOLAR TECHNOLOGIES PTY LTD & ANOR

[2020] FCCA 2838

Catchwords:
INDUSTRIAL LAW – Default judgment – multiple contraventions of the relevant award – failure to pay entitlements – first respondent in external administration – first respondent and second respondent jointly and severally liable to pay entitlements to the applicant – second respondent liable to pay pecuniary penalties – pecuniary penalties payable to the applicant.

Legislation:

Fair Work Act 2009 (Cth) ss.45, 323, 536, 545, 546, 550, 570(2).

Federal Circuit Court of Australia Rules 2001 (Cth) rr.13.03A(2), 13.03B(2)(c),

13.03B(2)(d).

Cases cited:

Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433

Kelly v Fitzpatrick [2007] FCA 1080

Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550

Other Materials:

Electrical, Electronic and Communication Contracting Award 2010, cl. 26.1, 28.

Applicant:

MICHAEL AWWAD

First Respondent:

VIC SOLAR TECHNOLOGIES PTY LTD

Second Respondent:

SUNNY SRINIVASAN

File Number:

MLG 4199 of 2019

Judgment of:

Judge McNab

Hearing date:

28 July 2020

Date of Last Submission:

22 September 2020

Delivered at:

Melbourne

Delivered on:

20 October 2020

REPRESENTATION

Counsel for the Applicant:

Mr J Ryan

Solicitors for the Applicant:

Hughes Legal

No appearance by the Respondents

ORDERS

Pursuant to rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth) and section 545(1) of the Fair Work Act 2009 (Cth) (“the Fair Work Act”), default judgment be entered in favour of the Applicant against the Respondents.
The Court makes declarations that:
(a)the First Respondent contravened section 45 of the Fair Work Act by:
(i)failing to pay the Applicant’s overtime entitlements arising under Clause 26.1 of the Electrical, Electronic and Communication Contracting Award 2010 (“the Award”);
(ii)failing to pay the Applicant’s annual leave entitlements arising under clause 28 of the Award;
(b)the First Respondent contravened section 323 of the Fair Work Act in failing to pay to the Applicant:
(i)the base weekly rate entitlement pursuant to clause 4 the Employment Contract;
(ii)the notice period entitlement pursuant to clause 7.1 of the Employment Contract;
(iii)the overtime entitlement pursuant to clause 26.1 of the Award; and
(iv)the annual leave loading entitlement pursuant to clause 28 of the Award;
(c)the First Respondent contravened section 536 of the Fair Work Act by failing to provide payslips to the Applicant for the weeks ending 7 April 2019, 14 April 2019, 21 April 2019, 28 April 2019 and 5 May 2019;
(d)the Second Respondent was knowingly concerned in the contraventions, pursuant to section 550 of the Fair Work Act;
(e)by reason of the First Respondent’s contraventions of section 45 of the Fair Work Act:
(i)in relation to overtime entitlements under clause 26.1 of the Award, the Applicant has suffered a loss of entitlements in the amount of $11,964.54;
(ii)in relation to annual leave loading entitlements under clause 28 of the Award, the Applicant has suffered a loss of entitlements in the amount of $517.23;
(f)by reason of the…

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.

Keep reading for free

Create a free CaseChat account to read Awwad v Vic Solar Technologies Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FCCA 2838
Decision Date: 20 October 2020

CaseChat Overview and Summary

In *Awwad v Vic Solar Technologies Pty Ltd*, the applicant sought default judgment against the first respondent, Vic Solar Technologies Pty Ltd, and the second respondent, Mr. Anthony John Awwad, for multiple contraventions of the relevant award, specifically concerning the failure to pay employee entitlements. The first respondent was in external administration at the time of the proceedings. The applicant sought orders that both respondents be jointly and severally liable for the unpaid entitlements and that the second respondent be liable for pecuniary penalties, payable to the applicant.

The court was required to determine whether default judgment should be entered against the respondents for the alleged contraventions of the award and the quantum of any unpaid entitlements and pecuniary penalties. A key issue was the extent of the second respondent's personal liability for the company's contraventions, particularly in light of the company's external administration.

Judge McNab found that the evidence before the court established multiple contraventions of the relevant award by the first respondent, leading to unpaid entitlements for the applicant. The court accepted that the second respondent, as a director, was jointly and severally liable with the first respondent for these unpaid entitlements. Furthermore, the court determined that the second respondent was personally liable for pecuniary penalties arising from these contraventions, ordering that these penalties be paid to the applicant. The court entered default judgment against both respondents for the unpaid entitlements and against the second respondent for the pecuniary penalties.

Orders