Budathoki v Consult Security Pty Ltd and Ors (No.2) - [2020] FCCA 2372

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUDATHOKI v CONSULT SECURITY PTY LTD & ORS (No.2)

[2020] FCCA 2372

Catchwords:
INDUSTRIAL LAW – Application for relief arising from earlier liability judgment – consideration of matters relevant to the fixing of pecuniary penalties.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 45, 90, 117, 323, 536, 545, 546, 547, 550, 557.

Cases cited:

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors (2015) 258 CLR
Trade Practices Commission v CSR Ltd (1991) ATPR 41‑076
Kelly v Fitzpatrick [2007] 166 IR 14
Fair Work Ombudsman v NSH North Proprietary Limited trading as New Shanghai Charlestown [2017] FCA 1301
Ross v Paea trading as Bombora Café [2020] FCA 766
Bobridge v Choppair(No.2) [2018] FCA 700

Applicant:

YADU BUDATHOKI

First Respondent:

CONSULT SECURITY PTY LTD

Second Respondent:

CONNIE PRIVITELLI

Third Respondent:

JEZ PRIVITELLI

File Number:

MLG 2213 of 2019

Judgment of:

Judge Burchardt

Hearing date:

Not applicable

Date of Last Submission:

17 August 2020

Delivered at:

Dandenong

Delivered on:

3 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr Nyland

Solicitors for the Applicant:	Fitzroy legal Service
Counsel for the First Respondent	No Appearance

Solicitors for the First Respondent :

No Appearance

Counsel for the Second Respondent:

Not applicable

Solicitors for the Second Respondent:	Self-Represented
Counsel for the Third Respondent	No Appearance

Solicitors for the Third Respondent :

No Appearance

THE COURT DECLARES THAT:

The First Respondent contravened s.44 of the Fair Work Act 2009 (Cth) (“the FWA”) by:
(a)failing to pay the Applicant accrued annual leave and annual leave loading upon termination in contravention of s.90 FWA
(b)failing to make a payment in lieu of notice of termination to the Applicant in contravention of s.117 FWA.
The First Respondent contravened s.45 of the FWA by failing to:
(a)pay the Applicant wages on a weekly or fortnightly basis in contravention of clause 19.1 of the Security Services Industry Award 2010 (“the Award”);
(b)failing to make copies of the Award available to the Applicant in contravention of clause 5 of the Award;
(c)failing to make contributions to a superannuation fund for the benefit of the Applicant in contravention of clause 20.2 of the Award;
(d)failing to pay the Applicant penalty rates for night shift work in contravention of clause 22.3 of the Award;
(e)failing to pay the Applicant the ordinary base rate of pay in contravention of clause 14 of the Award;
(f)failing to pay the Applicant penalty rates for work completed on Saturdays in contravention of clause 22.3 of the Award;
(g)failing to pay the Applicant penalty rates for work completed on Sundays in contravention of clause 22.3 of the Award; and
(h)failing to pay the Applicant penalty rates for work completed on public holidays in contravention of in contravention of clause 22.3 of the Award.
The First Respondent contravened s.323 FWA by failing to pay the Applicant wages in full.
The First Respondent contravened s.536 FWA by failing to give the Applicant pay slips.
The Second Respondent was involved in,…

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: [2020] FCCA 2372
Decision Date: 3 September 2020

CaseChat Overview and Summary

In *Budathoki v Consult Security Pty Ltd and Ors (No.2)*, the applicant sought relief from an earlier liability judgment, specifically concerning the determination of pecuniary penalties. The matter came before Judge Burchardt.

The central legal issue before the Court was to consider the various matters relevant to the fixing of pecuniary penalties in light of the earlier liability judgment. This involved assessing the appropriate quantum of penalties to be imposed on the respondents.

Judge Burchardt considered a range of factors in determining the pecuniary penalties. These included the nature and extent of the contraventions, the respondents' culpability, the need for deterrence, and the respondents' capacity to pay. The Court applied principles of industrial law relating to the imposition of penalties for breaches of statutory obligations, aiming to achieve both punishment and deterrence. The Court's reasoning focused on ensuring that the penalties reflected the seriousness of the conduct and served to discourage future non-compliance by the respondents and others in similar positions.

Orders