Brobbel v Darrell Lea Chocolate Shops Pty Ltd - [2008] FMCA 714

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BROBBEL v DARRELL LEA CHOCOLATE SHOPS PTY LTD

[2008] FMCA 714

INDUSTRIAL LAW – Application for declarations and imposition of penalties – agreed statement of facts – declarations made as agreed by parties – consideration of matters relevant to penalty.

Workplace Relations Act 1996, ss.337, 337(2), 337(4), 400(5), 792(1)

Jones v Hanssen Pty Ltd [2008] FMCA 291
Mason v Harrington Corp Pty Ltdt/as Pangaea Restaurant & Bar [2007] FMCA 7
Kelly v Fitzpatrick (2007) 166 IR 14
Australian Ophthalmic Supplies Pty Ltdv McAlary‑Smith [2008] FCAFC 8
Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276
NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission (1996) 71 FCR 285
Jordan v Mornington Inn Pty Ltd [2007] FCA 1384
McIver v Healey [2008] FCA 425
Trade Practices Commission v TNT Australia Ltd (1995) ATPR 40-161

Applicant:

INSPECTOR ANTHONY PETER BROBBEL

Respondent:

DARRELL LEA CHOCOLATE SHOPS PTY LTD (A.C.N. 000 498 386)

File number:

MLG 873 of 2007

Judgment of:

Burchardt FM

Hearing date:

11 April 2008

Date of last submission:

11 April 2008

Delivered at:

Melbourne

Delivered on:

13 June 2008

REPRESENTATION

Counsel for the Applicant:

Ms Doyle

Solicitor for the Applicant:

Clayton Utz

Counsel for the Respondent:

Mr O'Grady

Solicitor for the Respondent:

Gadens Lawyers

THE COURT DECLARES AND ORDERS:

A declaration that the Respondent has engaged in 12 contraventions of s.400(5) of the Work Place Relations Act 1996 (Cth) (“the WR Act”):
·
In or around January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of

Hannah Jovanovic;
·In or about January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of Laura Kelly;
·In or about January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of Amy Holley;
·In or about January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of Natalie Alessio;
·In or about January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of Sally Lugg;
·In or about January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of Catherine Sell;
·In or about January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of Genevieve Margetic;
·In or about January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of Cathryn Andersen;
·In or about January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of Heidi Kisso;
·In or about January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of Desiree Horvath;
·In or about January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of Scott Toniazzo; and
·In or about January or February 2007 the Respondent contravened s.400(5) of the WR Act in respect of Julia Siomos.
Pursuant to s.407(1)(b) and s.407(2)(zi) of the WR Act the Respondent shall…

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 Brobbel v Darrell Lea Chocolate Shops 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: [2008] FMCA 714
Decision Date: 13 June 2008

CaseChat Overview and Summary

Brobbel v Darrell Lea Chocolate Shops Pty Ltd is a case where Inspector Anthony Peter Brobbel brought an application against Darrell Lea Chocolate Shops Pty Ltd for contraventions of the Workplace Relations Act 1996. The Federal Magistrates Court was required to decide the appropriate penalty for the admitted contraventions and consider the relevant factors in determining the penalty. The primary issue was how much Darrell Lea should be fined for the 12 admitted contraventions of section 400(5) of the Workplace Relations Act 1996. The Court found that Darrell Lea should pay a fine of $10,000.00 per contravention, totalling $120,000.00. The Court took into account the company's size, lack of sophistication in human resource matters, the employees' disadvantaged position, and the company's cooperation throughout the proceedings in determining the penalty.

The Court also declared that the Respondent engaged in 4 contraventions of section 792(1) of the Workplace Relations Act in relation to each of the 4 award casuals, and 7 contraventions of section 337(9) of the Workplace Relations Act in respect of failures to provide information statements. Additionally, the Court declared the Australian Workplace Agreements that applied to each of the following employees to be void ab initio: Sally Lugg, Genevieve Margetic, Cathryn Andersen, Heidi Kisso, and Scott Toniazzo.

Orders