Fair Work Ombudsman v AIMG BQ Pty Ltd - [2018] FCCA 1879

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v AIMG BQ PTY LTD & ANOR

[2018] FCCA 1879

Catchwords:
INDUSTRIAL LAW – Application to set aside Orders imposing civil penalties made on an undefended basis – application dismissed.

Legislation:

Fair Work Act 2009, ss.550(1), 570

Federal Circuit Court Rules 2001, r.16.05(2)(a)

Cases cited:

3D Funtimes Limited v Intellec Development Group Pty Limited (No. 2) [2011] FCA 407

Allesch v Maunz (2003) CLR 172

Clifford & Mountford [2006] 219 FLR 437

Fair Work Ombudsman v AIMG BQ Pty Ltd [2016] FCCA 1024

Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

AIMG BQ PTY LTD

Second Respondent:

ZHAO QING JIANG

File Number:

SYG 1559 of 2015

Judgment of:

Judge Altobelli

Hearing date:

16 April 2018

Date of Last Submission:

16 April 2018

Delivered at:

Sydney

Delivered on:

20 July 2018

REPRESENTATION

Counsel for the Applicant:

Ms Brigden

Solicitors for the Applicant:

Fair Work Ombudsman

Counsel for the First and Second Respondents:

Mr Moorehouse

Solicitors for the First and Second Respondents:

Harmers Workplace Lawyers

ORDERS

The Application in a Case filed 30 June 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1559 of 2015

FAIR WORK OMBUDSMAN

Applicant

And

AIMG BQ PTY LTD

First Respondent

ZHAO QING JIANG

Second Respondent

REASONS FOR JUDGMENT

By way of an Application in a Case filed 30 June 2017, the Respondents, AIMG BQ Pty Ltd and Zhao Qing Jiang seeks Orders pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (hereafter referred to as ‘the Rules’) that Orders made by myself in the present proceedings on 31 May 2016 be set aside.
The application is opposed by the Fair Work Ombudsman. These reasons for judgment explain why the Court has dismissed the said Application in a Case.

Background

On 31 May 2016 I made Orders and published Reasons for Judgment in what I will describe as the substantive proceedings between the parties. The judgment was published as [2016] FCCA 1024. I found that the First Respondent company had contravened a number of the civil remedy provisions in the Fair Work Act 2009 (hereafter referred to as ‘the Act’). I found that the Second Respondent, Mr Jiang, was involved in the contraventions referred to above, within the meaning of s.550(1) of the Act.
I ordered the First Respondent company to pay pecuniary penalties in the amount of $272,850 in respect of its contraventions. I ordered the Second Respondent to pay pecuniary penalties in the amount of $8,160 in respect of his personal contraventions.
The hearing itself took place on 15 March 2016, and proceeded on an undefended basis. However, when judgment was delivered on 31 May 2016 an appearance was made on behalf of the Respondents. The significance of this will be discussed below.
My Reasons for Judgment require no further explanation. There is one paragraph, however, that bears reproduction because it captures a theme of this case, namely, the failure of the Respondents…

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

Case: [2018] FCCA 1879
Decision Date: 20 July 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against AIMG BQ Pty Ltd (the employer) in the Federal Circuit and Family Court of Australia. The dispute concerned allegations that the employer had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay an employee their entitlements under the National Employment Standards (NES) and a relevant award. Specifically, the FWO alleged that the employee was not paid for all hours worked, including overtime, and was not provided with accrued annual leave.

The court was required to determine whether the employer had contravened section 44(1) of the *Fair Work Act* by failing to pay the employee the minimum wage for all hours worked, and whether it had contravened section 90(1) of the *Fair Work Act* by failing to pay out accrued but untaken annual leave upon termination of employment. The court also had to consider whether the employer had breached the applicable award by failing to pay overtime rates for hours worked in excess of ordinary hours.

In reaching its decision, the court analysed the evidence presented regarding the employee's hours of work and the employer's payroll records. Judge Altobelli found that the employer had failed to keep accurate records of the employee's hours, which made it difficult to verify the employer's claims about payment. The court applied the principles of statutory interpretation to the relevant provisions of the *Fair Work Act* and the award, emphasizing the employer's obligation to ensure compliance with minimum employment entitlements. The court concluded that the employer had contravened the NES and the award by underpaying the employee and failing to pay out accrued annual leave.

The court ordered AIMG BQ Pty Ltd to pay the outstanding entitlements to the employee, along with penalties for the contraventions.

Orders