Enkel v We R Finance Pty Ltd

In this case, the appeal was brought by Mr Enkel against We R Finance Pty Ltd (WRF) and its director, Mr Ross, following a decision by the Western Australian Industrial Magistrates Court (WAIMC). The primary dispute involved the underpayment of statutory award and entitlements, as well as the accessorial liability of Mr Ross as a director of WRF. The court was tasked with determining whether Mr Ross was involved in the contraventions of the award and whether the locum payments could be set off against the award entitlements. Additionally, the court needed to decide if the separate contraventions could be treated as one and whether the conduct of the defence amounted to an unreasonable act causing the other party to incur costs.

The court found that the industrial magistrate had erred in several respects. Firstly, the magistrate had incorrectly determined that Mr Ross was not involved in the contraventions. The court held that Mr Ross was a party to the contraventions, as he had knowledge of all the elements involved. The court also found that the magistrate had erred in considering that the locum payments could be set off against the award entitlements. The court ruled that the locum payments were intended for a specific purpose, distinct from the award entitlements. Furthermore, the court found that the magistrate had incorrectly treated the separate contraventions as one, and thus, separate civil penalties must be applied to each contravention. The court, however, dismissed the ground of appeal regarding costs, finding that the conduct of the defence was arguable.

The court set aside the orders of the WAIMC and required the parties to file a minute of consent orders specifying the amounts to be paid under the Fair Work Act 2009 (Cth) or, if agreement could not be reached, separate minutes. The court also remitted the question of penalties for each of the cross-respondents to the WAIMC for further hearing and determination. Any party wishing to apply for an order in relation to the costs of the appeal or the cross-appeal had to make an application within seven days of the date of these orders by way of written submissions of no more than three pages in length directed to the chambers of Justice Jackson.

The court's final orders included setting aside the orders of the WAIMC, requiring the parties to file a minute of consent orders or separate minutes, listing the matter for any further hearing necessary to settle the orders, granting liberty to apply in relation to the orders, remitting the question of penalties to the WAIMC, and directing any application for costs to be made within seven days by way of written submissions.