Fair Work Ombudsman v AJSJ Pty Ltd - [2016] FCCA 1902

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v AJSJ PTY LTD & ANOR

[2016] FCCA 1902

Catchwords:
INDUSTRIAL LAW – Application for civil penalties ‑ consideration of range of penalty to be applied ‑ pecuniary penalty imposed upon Respondents.

Legislation:

Workplace Relations Act 1996, ss.719(1), 719(2), 841(a)

Cases cited:

Fair Work Ombudsman v AJSJ Pty Ltd & Anor [2014] FCCA 902
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Kelly v Fitzpatrick [2007] FCA 1080
New Image Photographics Pty Ltd v Fair Work Ombudsman [2013] FCA 1385

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

AJSJ PTY LTD

Second Respondent:

JASBIR KAUR GHAG

File Number:

BRG 1156 of 2011

Judgment of:

Judge Baumann

Hearing date:

27 February 2015

Date of Last Submission:

19 May 2015

Delivered at:

Brisbane

Delivered on:

26 July 2016

REPRESENTATION

Counsel for the Applicant:	Mr Prain
Solicitors for the Applicant:	Fair Work Ombudsman
Solicitors for the First Respondent:	Milner Lawyers
Solicitors for the Second Respondent:	Milner Lawyers

ORDERS

Noting the Orders of the Court made 14 May 2014.

THE COURT ORDERS:

That the First Respondent pay a penalty of $13,200 pursuant to s.719(1) and s.719(2) of the Workplace Relations Act 1996 (Cth) for the conduct that amounted to two (2) contraventions found by the Court.
That the Second Respondent pay a penalty of $2,640 pursuant to s.719(1) and s.719(2) of the Workplace Relations Act 1996 (Cth) for the conduct that amounted to two (2) contraventions found by the Court.
That pursuant to s.841(a) of the Workplace Relations Act 1996 (Cth), that all penalties be paid into the Consolidated Revenue Fund of the Commonwealth within sixty (60) days of this Order.
That the Applicant has liberty to apply on seven (7) days’ notice for enforcement, if payment of the penalties is not made.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1156 of 2011

FAIR WORK OMBUDSMAN

Applicant

And

AJSJ PTY LTD

First Respondent

JASBIR KAUR GHAG

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 14 May 2014, in this matter Judge Burnett (as he then was) made orders and declarations as follows:
“THE COURT DECLARES THAT:
(1)The First Respondent contravened:
Clause 15, in conjunction with clause 17, of the Rue de Paris Collective Agreement 2006; and
Clause 6 of the Rue de Paris Collective Agreement 2006;
which are “applicable provisions” for the purposes of s.718 of the Workplace Relations Act 1996 (Cth).
(2)The Second Respondent was involved in the contraventions of the First Respondent referred to in Order 1 within the meaning of s.728 of the Workplace Relations Act 1996 (Cth).
These orders were consistent with Reasons for Judgment delivered by Judge Burnett on that date (see Fair Work Ombudsman v AJSJ Pty Ltd & Anor [2014] FCCA 902). I rely upon the findings made in that judgment, which I note was not the subject of Appeal.
With the resignation of Judge Burnett, subsequent to him delivering his judgment a penalty hearing had to be conducted by another…

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 1902
Decision Date: 26 July 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) commenced proceedings against AJSJ Pty Ltd (the employer) in the Federal Circuit and Family Court of Australia, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned the employer's failure to pay an employee, Ms. J. S. Kim, her minimum entitlements under the National Employment Standards (NES) and the relevant modern award, specifically the *Fast Food Industry Award 2010*. The FWO sought pecuniary penalties for these contraventions.

The primary legal issue before Judge Baumann was whether the employer had contravened section 50 of the Act by failing to pay Ms. Kim the minimum wage and other entitlements, including annual leave and personal/carer's leave, as required by the NES and the *Fast Food Industry Award 2010*. The court was also required to determine whether the employer's conduct constituted a contravention of section 535 of the Act, which relates to record-keeping and pay slip obligations, and if so, to assess the appropriate penalty.

Judge Baumann found that the employer had indeed contravened the Act by failing to pay Ms. Kim her minimum entitlements and by failing to keep accurate records and provide compliant pay slips. The court applied the principles of statutory interpretation to the relevant provisions of the Act and the award, concluding that the employer's obligations were clear and had not been met. The court considered the objective seriousness of the contraventions, the employer's lack of contrition, and the need for deterrence in determining the penalty.

The court ordered AJSJ Pty Ltd to pay a penalty of $10,200 for the contraventions. Additionally, the employer was ordered to rectify the underpayments to Ms. Kim, which amounted to $10,000.

Orders