Bittner Holdings Pty Ltd v Fair Work Ombudsman

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FEDERAL CIRCUIT COURT OF AUSTRALIA

Bittner Holdings Pty Ltd v Fair Work Ombudsman [2021] FCCA 1455

File number(s): ADG 11 of 2020
Judgment of: JUDGE BROWN
Date of judgment: 8 JULY 2021
Catchwords: INDUSTRIAL LAW – compliance notices – application to review – whether fair work inspector compiled with statutory criteria applicable to issue of notice – reasonable belief – whether applicant has contravened applicable modern award – matters to be considered  
Legislation: Evidence Act1995 (Cth) s 140
Fair Work Act 2009 (Cth) ss 539, 682, 700, 703, 706, 716, 717
Liquor Licencing Act 1997 (SA) ss 100, 107, 107A, 110, 110A.
Restaurant Industry Award 2020 cl 2, 15.1, 18.1, Sch A, cl A.2.2 and A.2.3
Cases cited:

Downes v FB’S 2 Pty Ltd t/as Fancy Burgers [2015] SAIRC 25

Fair Work Ombudsman v Matcraft Pty Ltd & Ors [2021] FCCA 272

Fox v Percy (2003) 214 CLR 118
George v Rockett & Anor (1990) 170 CLR 104
Hana Express Group Pty Ltd v Fair Work Ombudsman (2020) 350 FLR 359
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Re 4 yearly review of modern award [2018] FWCFB 7263
Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical & Services Union (No 3) [2019] FCA 37

Number of paragraphs: 184
Dates of hearing: 25 & 26 March 2021
Place: Adelaide
Solicitor for the Applicant: Dentons
Counsel for the Applicant: Ms Bosboom
Solicitor for the Respondent: The Australian Government Solicitor
Counsel for the Respondent: Ms Walker

ORDERS

ADG 11 of 2020
BETWEEN:

BITTNER HOLDINGS PTY LTD TRADING AS MONTAGNA CAFE

Applicant
AND:

FAIR WORK OMBUDSMAN

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

8 JULY 2021

THE COURT ORDERS THAT:

1.The Compliance Notice issued on 25 November 2019 by Fair Work Inspector Zeballos pursuant to the provisions of section 716(2) of the Fair Work Act 2009 (Cth) (“the Act”) is confirmed pursuant to the provision of section 717(3) of the Act.

2.There be no order as to costs.

3.The application filed on 18 February 2020 is dismissed.

REASONS FOR JUDGMENT

JUDGE BROWN:

INTRODUCTION

  1. These proceedings arise under the provisions of sections 716 and 717 of the Fair Work Act 2009 (Cth) (“the Act”) relating to a Compliance Notice issued by a Fair Work Inspector against the applicant, in the case, Bittner Holdings Pty Ltd (“the applicant” or “Bittner Holdings”).

  2. Amongst other objectives, the Act is directed towards guaranteeing enforceable minimum wages and standard conditions in respect of workplaces in Australia through provisions which mandate employer compliance with various applicable industrial awards.

  3. In order to achieve this object, the Act creates the office of the Fair Work Ombudsman,[1] one of whose functions is to enforce compliance with the Act, including any workplace obligations residing on employers, as a consequence of relevant industrial awards, mandating rates of pay and conditions of employment.

    [1] See Fair Work Act 2009 (Cth) s 682. Hereinafter referred to as the respondent or “the FWO”.

  4. In turn, the FWO may appoint Fair Work…

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Details
Case
[2021] FCCA 1455
Decision Date

CaseChat Overview and Summary

Bittner Holdings Pty Ltd sought review of a Notice issued by the Fair Work Ombudsman. The dispute concerned alleged contraventions of the Fair Work Act 2009 (Cth) by Bittner Holdings, specifically in relation to the employment of staff under the age of 20 years in serving alcoholic drinks at the Montagna Café. The matter came before Brown J of the Federal Court of Australia.

The primary legal issue before the Court was whether Bittner Holdings had discharged the onus of proving that it did not commit the alleged contraventions. This involved determining the meaning and application of the term "liquor service employee" within the relevant award and assessing the extent of young employees' involvement in serving alcoholic beverages. The Court was required to consider the evidence presented, particularly the testimony of Ms Bittner, and compare it with that of other employees to ascertain the factual circumstances of the employment arrangements.

Brown J found Ms Bittner to be a credible and experienced business person with a thorough understanding of her business operations. While acknowledging that her evidence differed in its details from that of other employees, the Court did not find that Bittner Holdings had consciously set out to exploit young workers by underpaying them. The Court noted the ambiguity surrounding the definition of a "liquor service employee" and the complex operational environment of a busy café. Ultimately, the Court concluded that different interpretations of the award and its application to the café's specific circumstances were possible, and it did not support a finding of deliberate exploitation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Accordingly, in the present case, Bittner Holdings bears the onus of proving that it did not commit the alleged contraventions. If it discharges this onus, pursuant to the provisions of section 717(3) of the Act, the Court may cancel or vary the Notice in question, upon completion of the relevant review.THE EVIDENCE The applicant relies on the evidence of Ms Bittner alone. I assess her to be an experienced and highly competent business person, with a deep understanding of the responsibilities entailed in the management of a successful small hospitality business, such as the Montagna Café. I have no reason to doubt the credibility of her evidence, although in its intricacies and emphases, it differs from that of Ms Martin and other employees, who worked at the Café concurrently with her. The main issue in contention being the involvement of staff members, under the age of 20 years, in serving of alcoholic drinks at the Café. This does not strike me as being either surprising or anomalous. Rather, in my view, it reflects the fact that Ms Martin and those associated with her, approach the issues in dispute from one perspective, whilst Ms Bittner approaches them from an entirely different viewpoint. Inevitably, these disparate perspectives must cause the parties to view and recollect the same events, which occurred a number of years ago now, through very different lenses. It would be impossible for any person to remember the minutiae of what he or she did, in a busy workplace, such as the Montagna Café, at some years removed. In addition, the concept of what is meant by the expression liquor service employee, in the context of the present matter, is somewhat an abstruse one. The word liquor is used as a qualifier to the word service. However the degree or extent to which the service must be associated with liquor alone, or in combination with food and other drinks, is not specified. It is clear, based on Ms Martin’s own evidence that her duties, at relevant times, were not confined to the provision of alcoholic drinks only. The Café provides many services related to the provision of meals and a variety of drinks. Ms Martin was involved in all these aspects of the Café’s business. I make these preliminary observations because it is important that I point out that my view of the evidence does not support any finding that either Ms Bittner or anyone associated with her have consciously set out to exploit vulnerable young workers by underpaying them. In my view, this is the type of matter in which different minds, being familiar with the relevant background, could reach different conclusions about the meaning of the relevant award and how it applies to a business such as Montagna Café, which is relatively small in scope, frequently very busy, and from time to time may require that all of its staff work quickly, under some pressure, to satisfy the demands of its customers. I concede that it is not strictly necessary for me to make such a finding but consider it is appropriate to do so, given my finding that Ms Bittner is a credible witness, who has not attempted to mislead the Court in any way.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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