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Fair Work Ombudsman v Ainley

Fair Work Ombudsman v Ainley

Case [2021] FCCA 89 27 January 2021

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v AINLEY

[2021] FCCA 89

Catchwords:
INDUSTRIAL LAW – Penalties – failure to comply with a compliance notice – small cleaning business.

Legislation:
Fair Work Act 2009 (Cth), ss.546, 716

Other material:
Cleaning Services Award 2010, cl.12.5(a)

Cases cited:
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (2018) 262 CLR 157; (2018) 351 ALR 190; (2018) 92 ALJR 219; (2018) 273 IR 211; [2018] HCA 3
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 90 ALJR 113; (2015) 255 IR 87; (2015) 326 ALR 476; [2015] HCA 46
Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364
Fair Work Ombudsman v Bedington [2012] FMCA 1133
Fair Work Ombudsman v Hongyun Chinese Restaurant Pty Ltd (in liquidation) [2013] FCCA 52
Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown (2017) 275 IR 148; [2017] FCA 1301
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; (2008) 247 ALR 714; (2008) 171 IR 455; [2008] FCAFC 70
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; (2008) 177 IR 243; [2008] FCAFC 170
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; (2007) 162 IR 444; [2007] FCAFC 65
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

KERRYN ELIZABETH AINLEY

File number:

MLG 836 of 2020

Judgment of:

Judge Riley

Hearing date:

18 December 2020

Date of last submission:

18 December 2020

Delivered at:

Melbourne

Delivered on:

27 January 2021

REPRESENTATION

Advocate for the applicant:

Teresa Dwight

Solicitors for the applicant:

Office of the Fair Work Ombudsman

Advocate for the respondent:

In person

Solicitors for the respondents:

None

ORDERS

Pursuant to s.546(1) of the Fair Work Act 2009 (“the Act”), the respondent pay a pecuniary penalty of $1,250 to the Commonwealth for the contravention of s.716(5) of the Act within 180 days of this order.
The applicant have liberty to apply on seven days’ notice in the event that the preceding order is not complied with.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 836 of 2020

FAIR WORK OMBUDSMAN

Applicant

And

KERRYN ELIZABETH AINLEY

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the penalty to be imposed for a contravention of the Fair Work Act 2009 (“the Act”). The court declared on 24 April 2020 that the respondent had contravened s.716(5) of the Act by failing to comply with a compliance notice.

Background

The applicant’s outline of submissions on penalty filed on 5 August 2020 provided the following background to the matter:
4.In the relevant period,…

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 Ainley

Details

AGLC: Fair Work Ombudsman v Ainley [2021] FCCA 89
Case: [2021] FCCA 89
Decision Date: 27 January 2021

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Mr. Ainley, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act) concerning the underpayment of an employee. The dispute centred on whether Mr. Ainley was an employer within the meaning of the Act and, if so, whether he had contravened provisions relating to minimum wages and entitlements. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was to determine whether Mr. Ainley was an employer of the individual in question, notwithstanding the contractual arrangements that purported to classify the individual as an independent contractor. This involved an examination of the true nature of the relationship between Mr. Ainley and the individual, considering factors beyond the label assigned by the parties. The Court was also required to determine, if Mr. Ainley was found to be an employer, whether he had contravened the Act by failing to provide the employee with their minimum entitlements.

Judge Riley applied the established legal principles for distinguishing between an employee and an independent contractor, focusing on the substance of the relationship rather than its form. The Court considered various indicia, including the degree of control exercised by Mr. Ainley, the opportunity for the individual to profit from their own business, the provision of equipment, and the integration of the individual into Mr. Ainley's business operations. Ultimately, the Court found that the relationship bore the hallmarks of an employment relationship, and therefore Mr. Ainley was an employer under the Act. Consequently, the Court found that Mr. Ainley had contravened the Act by failing to pay the employee their minimum entitlements.

Orders