Dennington v Pee Cee Pty Ltd

Case [2008] FMCA 79


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

  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…

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Details
AGLC
Dennington v Pee Cee Pty Ltd [2008] FMCA 79
Case
[2008] FMCA 79
Decision Date

CaseChat Overview and Summary

Dennington v Pee Cee Pty Ltd was a matter before the Fair Work Commission, where Ms Dennington brought an action against Pee Cee Pty Ltd for multiple breaches of the Australian Fair Pay and Conditions Standard and notional agreement preserving State awards derived from the Tasmanian Hairdressing, Health and Beauty Industry Award. Ms Dennington, a former employee of the respondent, alleged that she had been underpaid over a number of pay periods due to incorrect calculations of her leave entitlements, overtime, and penalty rates. The Commission was required to determine whether the respondent had indeed breached the relevant awards and standards and, if so, what penalties were appropriate.

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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