FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DENNINGTON v PEE CEE PTY LTD | [2008] FMCA 79 |
| INDUSTRIAL LAW – Application for civil penalty – breach of applicable provisions – breaches admitted – considerations as to penalty. |
| Workplace Relations Act 1996 (Cth) ss.167, 718, 719, 814 |
| Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Cotis v Pow Juice Pty Ltd [2007] FMCA 140 CPSU v Telstra Corporation (2001)108 IR 228 Flattery v Zeffirelli’s Pizza Restaurant [2007] FMCA 9 Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 Josephson v Walker [1914] 18 CLR 691 Jordan v Mornington Inn Pty Ltd [2007] FCA 1384 Kelly v Fitzpatrick[2007] FCA 1080 Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Ponzio v BP Caelli Constructions Pty Ltd [2007] FCAFC 65 Printing and Kindred Industries Union & Ors v Vista Paper Products Pty Ltd (1994) 127 ALR 673 Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412 Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550 Ware v O’Donnell Griffin [1971] AR (NSW) 18 |
| Applicant: | SALLY DENNINGTON |
| Respondent: | PEE CEE PTY LTD |
| File Number: | LNG 20 of 2007 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 9 January 2008 in Hobart |
| Date of Last Submission: | 9 January 2008 |
| Delivered at: | Melbourne by telephone link to Hobart |
| Delivered on: | 6 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Zeeman |
| Solicitors for the Applicant: | Zeeman & Zeeman |
| Counsel for the Respondent: | Mr C. Green |
| Solicitors for the Respondent: | Page Seager |
ORDERS
That the respondent pay the Commonwealth the following penalties:
(a)in respect of the breach of the Australian Fair Pay and Conditions Standard by failing to pay basic hourly rate for the classification of “Beautician” as contained in the preserved Australian Pay and Classifications Scale derived from the Tasmanian Hairdressing, Health and Beauty Industry Award, the sum of $13,921.00;
(b)in respect of the breach of the Australian Fair Pay and Conditions Standard by failing to calculate Ms Durkin’s annual leave based on the basic hourly rate for the classification of “Beautician” as contained in the preserved Australian Pay and Classifications Scale derived from the Tasmanian Hairdressing, Health and Beauty Industry Award, the sum of $2,000.00;
(c)in respect of the breach of the Australian Fair Pay and Conditions Standard by failing to calculate Ms Durkin’s personal leave based on the basic hourly rate for the classification of “Beautician” as contained in the preserved Australian Pay and Classifications Scale derived from the Tasmanian Hairdressing, Health and Beauty Industry Award, the sum of $2,000.00;
(d)in respect of the breach of the notional agreement preserving State awards derived from the Tasmanian Hairdressing, Health and Beauty Industry Award by failing to calculate Ms Durkin’s hourly rate for work performed during evenings based on the basic hourly rate for the classification of “Beautician” as contained in the preserved Australian Pay and Classifications Scale derived from the…
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- AGLC
- Dennington v Pee Cee Pty Ltd [2008] FMCA 79
- Case
- [2008] FMCA 79
- Decision Date
CaseChat Overview and Summary
The Commission found that the respondent had failed to comply with multiple provisions of the awards and standards. Specifically, the respondent did not pay Ms Dennington the correct hourly rate for the classification of “Beautician” as outlined in the preserved Australian Pay and Classifications Scale derived from the Tasmanian Hairdressing, Health and Beauty Industry Award. Additionally, the respondent failed to calculate Ms Dennington’s leave entitlements, overtime, and penalty rates correctly. The Commission assessed the financial impact of these breaches and determined the appropriate penalties. The penalties were calculated based on the underpayments and were proportionate to the severity and frequency of the breaches.
Consequently, the Commission ordered the respondent to pay a total of $27,843.75 in penalties. This amount was broken down into seven separate categories, each corresponding to a different breach of the awards and standards. The penalties were intended to compensate Ms Dennington for the underpayments and to deter the respondent from future non-compliance. Furthermore, the Commission set a deadline for the respondent to agree on a payment plan and granted Ms Dennington leave to apply for a hearing to establish a timetable for submissions on the payment of the penalties if an agreement could not be reached. Finally, Ms Dennington was given liberty to apply for costs within seven days of the decision.
Orders
Orders of the court
1.
That the respondent pay the Commonwealth the following penalties:
(a) in respect of the breach of the Australian Fair Pay and Conditions Standard by failing to pay basic hourly rate for the classification of “Beautician” as contained in the preserved Australian Pay and Classifications Scale derived from the Tasmanian Hairdressing, Health and Beauty Industry Award, the sum of $13,921.00;
(b) in respect of the breach of the Australian Fair Pay and Conditions Standard by failing to calculate Ms Durkin’s annual leave based on the basic hourly rate for the classification of “Beautician” as contained in the preserved Australian Pay and Classifications Scale derived from the Tasmanian Hairdressing, Health and Beauty Industry Award, the sum of $2,000.00;
(c) in respect of the breach of the Australian Fair Pay and Conditions Standard by failing to calculate Ms Durkin’s personal leave based on the basic hourly rate for the classification of “Beautician” as contained in the preserved Australian Pay and Classifications Scale derived from the Tasmanian Hairdressing, Health and Beauty Industry Award, the sum of $2,000.00;
(d) in respect of the breach of the notional agreement preserving State awards derived from the Tasmanian Hairdressing, Health and Beauty Industry Award by failing to calculate Ms Durkin’s hourly rate for work performed during evenings based on the basic hourly rate for the classification of “Beautician” as contained in the preserved Australian Pay and Classifications Scale derived from the Tasmanian Hairdressing, Health and Beauty Industry Award, the sum of $2,500.00;
(e) in respect of the breach of the notional agreement preserving State awards derived from the Tasmanian Hairdressing, Health and Beauty Industry Award by failing to calculate Ms Durkin’s hourly rate for work performed on Saturdays based on the basic hourly rate for the classification of “Beautician” as contained in the preserved Australian Pay and Classifications Scale derived from the Tasmanian Hairdressing, Health and Beauty Industry Award, the sum of $3,422.75;
(f) in respect of the breach of the notional agreement preserving State awards derived from the Tasmanian Hairdressing, Health and Beauty Industry Award by failing to calculate Ms Durkin’s hourly rate for overtime worked based on the basic hourly rate for the classification of “Beautician” as contained in the preserved Australian Pay and Classifications Scale derived from the Tasmanian Hairdressing, Health and Beauty Award, the sum of $3,000.00;
(g) in respect of the breach of the notional agreement preserving State awards derived from the Tasmanian Hairdressing, Health and Beauty Industry Award by failing to calculate Ms Durkin’s public holiday leave based on the basic hourly rate for the classification of “Beautician” as contained in the preserved Australian Pay and Classifications Scale derived from the Tasmanian Hairdressing, Health and Beauty Industry Award, the sum of $1,000.00.
2.
Failing agreement within 7 days on a plan for the payment of the penalties in order (1) the applicant have leave to request the matter be listed for telephone mention for the purposes of fixing a timetable for submissions on the payment of the penalties ordered.
3.
The Applicant have liberty to apply within 7 days to make any application for costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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