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Fair Work Ombudsman v ACN 052 182 180 Pty Ltd & Anor

Fair Work Ombudsman v ACN 052 182 180 Pty Ltd & Anor

Case [2013] FCCA 688 4 July 2013

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v ACN 052 182 180 PTY LTD & ANOR

[2013] FCCA 688

Catchwords:
INDUSTRIAL LAW – Contravention of Fair Work Act 2009 and Workplace Relations Act1996 – non payment of accrued annual leave – failure to provide payslips and to keep records – matters relevant to penalty – payment of penalty to employee – insolvency is no defence.

Legislation:
Crimes Act 1914, s.4AA(1).
Fair Work Act 2009, ss.3(b), 44(1), 535, 536, 539(2), 546, 557.
Federal Circuit Court Rules2001, r.13.03C(1)(e).
Workplace Relations Act1996, ss.235(2), 814, 846.

Cases cited:
Cotis v McPherson [2007] FMCA 2060
Fair Work Ombudsman v Garfield Berry Farm Pty Ltd & Anor [2012] FMCA 103
Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Fair Work Ombudsman v Orwill Pty Ltd & Ors [2011] FMCA 730
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
FWO v Promoting U Pty Ltd & Anor [2012] FMCA 58
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 B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Re Trade Practices Commission v CSR Limited (1991) 13 ATPR 41-076
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Workplace Ombudsman v Saya Cleaning Pty Ltd [2009] FMCA 38

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

ACN 052 182 180 PTY LTD

Second Respondent

URI BURKE

File Number:

MLG 914 of 2011

Judgment of:

Judge F. Turner

Hearing date:

20 June 2013

Date of Last Submission:

20 June 2013

Delivered at:

Melbourne

Delivered on:

4 July 2013

REPRESENTATION

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

The First Respondent did not appear

The Second Respondent did not appear

ORDERS

Pursuant to reg.14.4 of the Workplace Relations Regulations 2006 (Cth) (the “WRR”) and s.546(1) of the Fair Work Act 2009 (Cth) (the “FWA”) the second respondent pay an aggregate penalty of $11,220.00 in respect of the contraventions referred to in the declarations and orders made by this Court on 6 December 2012 (Default Orders).
Pursuant to s.841 of the Workplace Relations Act 1996 (the “WRA”) and s.546(3) of the FWA the second respondent pay the penalties ordered against him pursuant to Order 1 above in the following manner:
(a)$5,000.00, plus interest of $1,422.00 on that amount (the Total Liability), be paid to Mr Aaron Dixon, pursuant to s.841(b) of the WRA and s.546(3)(c) of the FWA; and
(b)That $6,220.00 is to be paid into the Consolidated Revenue Fund of the Commonwealth, pursuant to s.841(a) of the WRA and s.(3)(a) of the FWA.
The payment of the amounts referred to in Order 2 above be made within 60 days of these orders.
Payment of the amounts referred to in Order 2 above be paid by bank cheques made out to Mr Aaron Dixon or the Consolidated Revenue…

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.

Continue reading Fair Work Ombudsman v ACN 052 182 180 Pty Ltd & Anor

Details

AGLC: FAIR WORK OMBUDSMAN v ACN 052 182 180 PTY LTD & ANOR [2013] FCCA 688
Case: [2013] FCCA 688
Decision Date: 4 July 2013

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard a matter brought by the Fair Work Ombudsman against ACN 052 182 180 Pty Ltd (in liquidation) and Mr. Anthony John Smith. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by the company, with Mr. Smith alleged to be knowingly concerned in these contraventions.

The court was required to determine whether the company had contravened specific provisions of the *Fair Work Act 2009* (Cth) relating to the payment of entitlements to its employees. Furthermore, the court had to consider whether Mr. Smith, as a director, was knowingly concerned in the company's alleged contraventions, thereby rendering him personally liable for those breaches.

In reaching its decision, the court analysed the evidence presented regarding the company's employment practices and the payment of wages and entitlements. The court applied the relevant provisions of the *Fair Work Act 2009* (Cth) and relevant case law concerning director liability for corporate contraventions. The court found that the company had indeed contravened the Act by failing to pay entitlements and that Mr. Smith was knowingly concerned in these contraventions. Consequently, the court made orders against both the company and Mr. Smith.

Orders