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Fair Work Ombudsman v AIMG BQ Pty Ltd

Fair Work Ombudsman v AIMG BQ Pty Ltd

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Case Copied 31 May 2016 72 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v AIMG BQ PTY LTD & ANOR [2016] FCCA 1024

Catchwords:
INDUSTRIAL LAW – Determination of penalties to be imposed in relation to admitted or undisputed contraventions of the Fair Work Act 2009 – relevant principles – where the matter proceeded undefended – where injunction granted under s.545 of the Fair Work Act 2009.

Legislation:

Crimes Act 1914 (Cth), s.4AA

Fair Work Act 2009 (Cth), ss.3, 44, 45, 90, 96, 323, 535, 536, 539, 546, 550, 557, 712Fair Work Regulations 2009

Federal Circuit Court of Australia Act 1999 (Cth), s.15
Industrial Relations Act 1998 (Cth), s.178
Workplace Relations Act 1996 (Cth), s.719

Cases cited:
Australian Competition and Consumer Commission v Dataline.net.auPty Ltd and Ors (2006) 236 ALR 665
Australian Competition and Consumer Commission v Yellow Page Marketing
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 246 ALR BV (No 2) [2011] FCA 352

Blandy v Coverdale NT Pty LtdACN102 611 423 [2008] FCA 1533

Cotis v MacPherson [2007] FMCA 2060
CPSU, The Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364
Darlaston v Risetop Construction Pty Ltd [2011] FMCA 220
David Armstrong v VK Holdings Pty Ltd [Unreported, Chief Industrial Magistrates court, Sydney, 28 November 1997]
Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140
Fair Work Ombudsman v EA Fuller & Sons Pty Ltd [[2013] FCCA 5
Fair Work Ombudsman v Lycamobile Pty Ltd [2013] FCCA 2132
Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2)[ 2012] FCA 557
Fair Work Ombudsman v Nicole Patrice Dawe [2013] FMCA 191
Fair Work Ombudsman v Orwill Pty Ltd & Ors [2011] FMCA 730
Fair Work Ombudsman v Promoting U Pty Ltd & Anor [2012] FMCA 58
Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479
Fair Work Ombudsman v VS Investment Group Pty Ltd & Anor [2013] FCCA 208
Fair Work Ombudsman v Zillion Zenith International Pty Ltd [2014] FCCA 433
Fryer v Yoga Tandoori House Pty Limited [2008] FMCA 288
Johnson v R (2004) 205 ALR 346
Kelly v Fitzpatrick (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
McIver v Healey [2008] FCA 425
Olsen v Sterling Crown Pty Ltd [2008] FMCA 1392
Pearce v R (1998) 194 CLR 610
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543
Re: StephenGibbs v The Mayor, Councillors and Citizens of the City of Altona [1992] FCA 374
Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545
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: AIMG BQ PTY LTD (ACN 148 012 284)

Second Respondent: ZHAO QING JIANG

File Number: SYG 1559 of 2015

Judgment of: Judge Altobelli

Hearing date: 15 March 2016

Date of…

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: [2016] FCCA 1024
Decision Date: 31 May 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) commenced proceedings in the Federal Circuit and Family Court of Australia against AIMG BQ Pty Ltd (the Company) alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned the Company's failure to pay a casual employee, Mr. K. Singh, the minimum hourly rate prescribed by the relevant modern award, the *Clerks – Private Sector Award 2020*, and to provide him with a Fair Work Information Statement at the commencement of his employment. The FWO sought pecuniary penalties for these alleged contraventions.

The primary legal issues before the Court were whether the Company had contravened section 50 of the Act by failing to pay Mr. Singh the minimum hourly rate stipulated in the *Clerks – Private Sector Award 2020* for the hours he worked as a casual employee, and whether the Company had contravened section 125 of the Act by failing to provide Mr. Singh with a Fair Work Information Statement. The Court was also required to determine the appropriate penalty to be imposed for any proven contraventions.

Judge Altobelli found that the Company had indeed contravened section 50 of the Act by failing to pay Mr. Singh the minimum casual rate of $25.00 per hour, as required by the *Clerks – Private Sector Award 2020*. The Court noted that the Company had paid Mr. Singh a flat rate of $20.00 per hour, which was below the award minimum. Furthermore, the Court found that the Company had contravened section 125 of the Act by failing to provide Mr. Singh with the requisite Fair Work Information Statement. In determining the penalty, the Court considered the objective seriousness of the contraventions, the need for deterrence, and the Company's lack of prior contraventions.

The Court ordered that AIMG BQ Pty Ltd pay a penalty of $1,500 for the contravention of section 50 of the Act and a penalty of $500 for the contravention of section 125 of the Act, totalling $2,000. The Company was also ordered to pay the FWO's costs.

Orders