Legal Research
Cases
Fair Work Ombudsman v Al Hilfi

Fair Work Ombudsman v Al Hilfi

Link copied

Case Copied 2 April 2015 56 min read

Contents

On this page

FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Al Hilfi [2015] FCA 313

Citation: Fair Work Ombudsman v Al Hilfi [2015] FCA 313

Parties:
FAIR WORK OMBUDSMAN v AHMAD HAMID MOHAMMED AL HILFI, NIDAL ALBAROUKI and CLENCY FERRIERE

FAIR WORK OMBUDSMAN v AYAM RAHMAH AL BASRY, NIDAL ALBAROUKI and CLENCY FERRIERE

File numbers: SAD 27 of 2012
SAD 109 of 2012

Judge: BESANKO J

Date of judgment: 2 April 2015

Catchwords:
PRACTICE AND PROCEDURE – application for default judgment against the second and third respondents – the Court’s power to make declarations of contravention on an application for a default judgment – where the second and third respondents failed to defend the proceedings with due diligence – Federal Court Rules 2011 (Cth) rr 5.22, 5.23.

INDUSTRIAL LAW – where the first respondent was declared to have contravened the Fair Work Act 2009 (Cth) – whether the second and third respondents were accessories or secondary contraveners to the first respondent’s contraventions – where the second and third respondents controlled the companies that engaged the first respondent as a subcontractor –where the second and third respondents knew that the wages and conditions paid and accorded by the first respondent to his employees did not comply with the applicable federal award and the Fair Work Act 2009 (Cth) – where the second and third respondents omitted to take any or any effective action to ensure the first respondent complied with the applicable federal award and the Fair Work Act 2009 (Cth) –Fair Work Act 2009 (Cth) s 550.

Held: Orders made for declarations, service of orders, and the filing and service of amended pleadings.

Legislation: Building and Construction Industry Improvement Act 2005 (Cth) s 48
Fair Work Act 2009 (Cth) ss 44, 45, 535, 536, 550
Federal Court Rules 1979 (Cth) O 35A r 3(2)(c)
Federal Court Rules 2011 (Cth) rr 4.5, 5.22, 5.23, 10.24
Trade Practices Act 1975 (Cth) s 75B

Cases cited: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd and Others [2006] FCA 1427; (2006) 236 ALR 665
Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd & Others (2007) 161 FCR 513
Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856
Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd and Others (2004) FCA 693; (2004) 207 ALR 329
Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Others [2012] FCAFC 56
Cooper v Ministry for Transport [1991] 2 NZLR 693
Du Cros v Lambourne (1907) 1 KB 40
Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 2) [2010] FCA 1156
Humphries v Halifax Vogel Group Proprietary Limited [2008] FCA 569
Leighton Contractors Pty Ltd v Construction, Foresting, Mining and Energy Union [2006] WASC 144; (2006) 154 IR 228
Luna Park Sydney Pty Limited v Bose [2006] FCA 94
R v Coney & Others (1882) 8 QBD 534
R v Russell (1933) VLR 59
Randall v R (2004) 146…

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.

Keep reading for free

Create a free CaseChat account to read Fair Work Ombudsman v Al Hilfi and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCA 313
Decision Date: 2 April 2015

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) filed a complaint against the first respondent, Al Hilfi, alleging contraventions of the Fair Work Act 2009 (Cth). The second and third respondents, who controlled the companies that employed Al Hilfi as a subcontractor, were also implicated in the proceedings. The Federal Court was tasked with determining whether the second and third respondents were accessories or secondary contraveners to Al Hilfi's contraventions. The FWO sought default judgments against the second and third respondents, arguing that they had failed to defend the proceedings with due diligence.

The court had to decide whether the second and third respondents were knowingly involved in the contraventions committed by Al Hilfi. The allegations included that the second and third respondents had the capacity to control Al Hilfi's business practices, including wage rates and employee conditions. They also knew that Al Hilfi's practices did not comply with the applicable federal award and the Fair Work Act 2009 (Cth). Despite this knowledge, they did not take any effective action to ensure compliance. The court had to consider whether their conduct, whether by act or omission, met the criteria for being an accessory or secondary contravener.

The court found that the second and third respondents were indeed knowingly concerned in the contraventions. Their ability to control Al Hilfi's business practices and their failure to act despite knowing about the non-compliance justified this finding. Consequently, the court granted the FWO's application for declarations and other orders, including the fixing of a date for the hearing of submissions on appropriate pecuniary penalties.

The court's orders included the service of copies of the orders on the second and third respondents via email within twenty-four hours of the orders being made available by the Court. The FWO was also granted leave to file and serve amended pleadings against the third respondent. The court allowed liberty to apply for further orders and noted that the entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicant serve a copy of these orders on the second respondent by sending an email to the address nidal@esteemgroup.net.au within twenty-four hours after these orders are made available by the Court.

2. The applicant have leave as against Mr Ferriere (third respondent) to file and serve the Fourth Further Amended Statement of Claim and the Third Further Amended Originating Application in respect of which leave has been granted to file and serve as against the first, second and Coles Supermarkets Australia Pty Ltd.

3. In respect of the third respondent, the applicant is taken to have filed and served the Fourth Further Amended Statement of Claim and the Third Further Amended Originating Application on 27 September 2014 in the manner described in the affidavit of Jennifer Mary Winckworth affirmed on 6 October 2014.

4. The applicant serve a copy of these orders on the third respondent by sending an email to the address clency33@gmail.com within twenty-four hours after these orders are made available by the Court.

5. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

2. The applicant have leave as against Mr Ferriere (third respondent) to file and serve the Third Further Amended Statement of Claim and the Second Further Amended Originating Application in respect of which leave has been granted to file and serve as against the first, second and Coles Supermarkets Australia Pty Ltd.

3. In respect of the third respondent, the applicant is taken to have filed and served the Third Further Amended Statement of Claim and the Second Further Amended Originating Application on 27 September 2014 in the manner described in the affidavit of Jennifer Mary Winckworth affirmed on 6 October 2014.

5. Liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The next question is whether it can be said that the conduct of the second respondent, and the conduct of the third respondent, whether by act or omission and directly or indirectly is sufficient to meet the description of being knowingly concerned in the contravention or party to the contravention. I think that the answer to that question in this case is yes, and in reaching that conclusion, I have relied principally on the allegation (taken to be admitted) that, at all material times, the second and third respondents had the capacity to control, direct or influence the conduct of Mr Al Hilfi in relation to the wages and conditions that were paid and accorded to his employees by Mr Al Hilfi, and the practices that Mr Al Hilfi adopted with respect to the issuing of payslips and keeping of employee records in relation to employees and the allegation (taken to be admitted) that Mr Al Hilfi was not a sophisticated businessman and he was subject to the direction of the second and third respondents in relation to the manner in which he conducted his business, including in relation to the wage rates he paid the trolley collectors.Conclusion I will make the declarations and other orders sought by the FWO. I will also fix a date for the hearing of submissions as to the appropriate pecuniary penalties.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Fair Work Ombudsman v Al Hilfi [2015] FCA 313
Parties:	FAIR WORK OMBUDSMAN v AHMAD HAMID MOHAMMED AL HILFI, NIDAL ALBAROUKI and CLENCY FERRIERE FAIR WORK OMBUDSMAN v AYAM RAHMAH AL BASRY, NIDAL ALBAROUKI and CLENCY FERRIERE
File numbers:	SAD 27 of 2012 SAD 109 of 2012
Judge:	BESANKO J
Date of judgment:	2 April 2015
Catchwords:	PRACTICE AND PROCEDURE – application for default judgment against the second and third respondents – the Court’s power to make declarations of contravention on an application for a default judgment – where the second and third respondents failed to defend the proceedings with due diligence – Federal Court Rules 2011 (Cth) rr 5.22, 5.23. INDUSTRIAL LAW – where the first respondent was declared to have contravened the Fair Work Act 2009 (Cth) – whether the second and third respondents were accessories or secondary contraveners to the first respondent’s contraventions – where the second and third respondents controlled the companies that engaged the first respondent as a subcontractor –where the second and third respondents knew that the wages and conditions paid and accorded by the first respondent to his employees did not comply with the applicable federal award and the Fair Work Act 2009 (Cth) – where the second and third respondents omitted to take any or any effective action to ensure the first respondent complied with the applicable federal award and the Fair Work Act 2009 (Cth) –Fair Work Act 2009 (Cth) s 550. Held: Orders made for declarations, service of orders, and the filing and service of amended pleadings.
Legislation:	Building and Construction Industry Improvement Act 2005 (Cth) s 48 Fair Work Act 2009 (Cth) ss 44, 45, 535, 536, 550 Federal Court Rules 1979 (Cth) O 35A r 3(2)(c) Federal Court Rules 2011 (Cth) rr 4.5, 5.22, 5.23, 10.24 Trade Practices Act 1975 (Cth) s 75B
Cases cited:	Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd and Others [2006] FCA 1427; (2006) 236 ALR 665 Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd & Others (2007) 161 FCR 513 Australian Competition and Consumer Commission v 1Cellnet LLC [2005] FCA 856 Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd and Others (2004) FCA 693; (2004) 207 ALR 329 Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Others [2012] FCAFC 56 Cooper v Ministry for Transport [1991] 2 NZLR 693 Du Cros v Lambourne (1907) 1 KB 40 Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 2) [2010] FCA 1156 Humphries v Halifax Vogel Group Proprietary Limited [2008] FCA 569 Leighton Contractors Pty Ltd v Construction, Foresting, Mining and Energy Union [2006] WASC 144; (2006) 154 IR 228 Luna Park Sydney Pty Limited v Bose [2006] FCA 94 R v Coney & Others (1882) 8 QBD 534 R v Russell (1933) VLR 59 Randall v R (2004) 146…