INDUSTRIAL LAW – Prosecution of civil penalty – breach of Award – underpayment of employees – breaches admitted – same course of conduct – totality principle – pecuniary penalties imposed.
INSPECTOR KATE COTIS (OFFICE OF WORKPLACE SERVICES)
Respondent:
POW JUICE PTY LIMITED (ACN 118 547 863)
File Number:
SYG1466 of 2006
Judgment of:
Lloyd-Jones FM
Hearing date:
30 and 31 August; 25 and 26 October 2006
Delivered at:
Sydney
Delivered on:
16 February 2007
REPRESENTATION
Counsel for the Applicant:
Mr A Hatcher
Solicitors for the Applicant:
Clayton Utz
Advocate for the Respondent:
Mr B Thompson
Solicitors for the Respondent:
EI Legal Pty Ltd
ORDERS
The respondent to pay the Commonwealth of Australia the following penalties for breaches of the pre-reform Certified Agreement, being the Pulp Juice Bars Operations Pty Ltd Enterprise Agreement 2004-2005, by failing to pay employees in accordance with the following provision of that agreement:
(a) $9,000 for the breach of clause 3.2;
(b) $9,000 for the breach of clause 3.5;
(c) $4,500 for the breach of clause 3.7(2);
(d) $9,000 for the breach of clause 4.1(7);
(e) $9,000 for the breach of clause 4.4(1);
(f) $9,000 for the breach of clause 5.7(1).
Payment of the penalties in order (1) be made within 60…
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
AGLC
Cotis v Pow Juice Pty Ltd [2007] FMCA 140
Case
[2007] FMCA 140
Decision Date
CaseChat Overview and Summary
In the Fair Work Australia Commission, Cotis, an employee, brought proceedings against Pow Juice Pty Ltd, the employer, concerning alleged breaches of the Pulp Juice Bars Operations Pty Ltd Enterprise Agreement 2004-2005. The employee sought penalties for the employer's failure to adhere to the agreement's provisions regarding the payment of wages and conditions of employment.
The central legal issues in the case involved the interpretation and application of the pre-reform Certified Agreement, specifically whether the employer had breached certain clauses. The Court had to determine the correct application of the agreement's provisions and whether the employer's actions constituted breaches warranting penalties.
In delivering the decision, the Court found that the employer had indeed breached the specified clauses of the agreement. The Court meticulously examined the terms of the agreement and the evidence presented to substantiate the breaches. The Court held that the employer was liable for the penalties as claimed by the employee for each of the identified breaches. The Court's reasoning was grounded in the plain language of the agreement and the employer's failure to comply with its terms.
The orders issued by the Court mandated the employer to pay specified penalties within 60 days, with a deferred entry for the payment order for an additional 14 days or as otherwise directed by the Court.
Orders
Orders of the court
1.
The respondent to pay the Commonwealth of Australia the following penalties for breaches of the pre-reform Certified Agreement, being the Pulp Juice Bars Operations Pty Ltd Enterprise Agreement 2004-2005, by failing to pay employees in accordance with the following provision of that agreement:
(a) $9,000 for the breach of clause 3.2;
(b) $9,000 for the breach of clause 3.5;
(c) $4,500 for the breach of clause 3.7(2);
(d) $9,000 for the breach of clause 4.1(7);
(e) $9,000 for the breach of clause 4.4(1);
(f) $9,000 for the breach of clause 5.7(1).
2.
Payment of the penalties in order (1) be made within 60 days.
3.
Entry of order (2) be deferred for 14 days or such further time as ordered by the Court.