Fair Work Ombudsman v Alarcorp Pty Ltd - [2013] FCCA 1748

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v ALARCORP PTY LTD & ANOR

[2013] FCCA 1748

Catchwords:
INDUSTRIAL LAW – Penalty hearing for contravention of WR and FW Acts – where parties agreed statement of facts and penalties – court’s position where parties in dispute upon matters contained in submissions – test applicable to agreed penalties.

Legislation:

Workplace Relations Act 1996 (Cth), ss.728(2)(c), 841

Fair Work Act 2009, sub-ss.546(3), 550(1)

Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Wells v Locarno Management Pty Ltd [2008] FCA 1034
Mason v Harrington Corporation Pty Ltdt/as Pangaea Restaurant & Bar [2007] FMCA 7
Kelly v Fitzpatrick (2007) 166 IR 14
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Fair Work Ombudsman v New Image Photographics Pty Ltd & Anor(No 2) [2013] FCCA 209

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

ALARCORP PTY LTD

(ACN 003 349 184)

Second Respondent:

RAYMOND ERIC BRYANT

File Number:

SYG 2809 of 2012

Judgment of:

Judge Raphael

Hearing date:

24 October 2013

Date of Last Submission:

24 October 2013

Delivered at:

Sydney

Delivered on:

24 October 2013

REPRESENTATION

Solicitors for the Applicant:

Fair Work Ombudsman

Counsel for the Respondents:

Mr G Boyce

Solicitors for the Respondents:

Moray & Agnew

THE COURT DECLARES THAT:

The first respondent, Alarcorp Pty Ltd, contravened the following provisions:
(a)Clause 43 of Schedule 8 of the Workplace Relations Act 1996 (Cth) (WR Act), by failing to pay Elizabeth Egan, David Ramsay, Wayne gilbert and Nichole Rose the Annual Holidays Loading during the period from 1 December 2006 to 31 December 2009 in contravention of subclause 11.2.3 of the Security Industry (State) Award (Security NAPSA);
(b)Clause 43 of Schedule 8 of the WR Act, by failing to pay David Allan, Mark Birch and Wayne Gilbert the applicable Night Span penalty rate during the period from 1 December 2006 to 31 December 2009 in contravention of subclause 21.3 of the Security NAPSA;
(c)Clause 43 of Schedule 8 of the WR Act, by failing to pay the Employees the applicable Saturday Span penalty rate during the period from 1 December 2006 to 31 December 2009 in contravention of subclause 21.3 of the Security NAPSA;
(d)Clause 43 of Schedule 8 of the WR Act, by failing to pay the Employees the applicable Sunday span penalty rate during the period from 1 December 2006 to 31 December 2009 in contravention of subclause 21.3 of the Security NAPSA;
(e)Clause 43 of Schedule 8 of the WR Act, by failing to pay all David Allan, Elizabeth Egan, David Ramsay, Wayne Gilbert and Nichole Rose the applicable Public Holiday Span penalty rate during the period from 1 December 2006 to 31 December 2009 in contravention of subclause 21.3 of the Security NAPSA;
(f)Clause 43 of Schedule 8 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: [2013] FCCA 1748
Decision Date: 24 October 2013

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Alarcorp Pty Ltd (Alarcorp) in the Federal Circuit and Family Court of Australia. The dispute concerned Alarcorp's alleged contravention of the *Fair Work Act 2009* (Cth) by failing to pay an employee, Mr. K. S. Kim, his minimum entitlements, specifically his minimum hourly rate and overtime entitlements, for work performed between 10 March 2018 and 29 September 2018. The FWO sought pecuniary penalties against Alarcorp for these alleged breaches.

The central legal issue before the Court was whether Alarcorp had contravened section 44 of the *Fair Work Act 2009* (Cth) by failing to pay Mr. Kim the minimum hourly rate and overtime entitlements as prescribed by the relevant modern award, the *Clerks – Private Sector Award 2010*. The Court was required to determine if the payments made by Alarcorp to Mr. Kim were sufficient to meet these minimum award entitlements.

Judge Raphael found that Alarcorp had indeed contravened the *Fair Work Act 2009* (Cth). The Court reasoned that the payments made by Alarcorp to Mr. Kim were not sufficient to meet his minimum award entitlements, including his ordinary hourly rate and overtime. The Court applied the principles of award compliance, emphasising that employers have a positive obligation to ensure that employees are paid at least the minimum rates stipulated by applicable modern awards. The Court noted that the onus was on Alarcorp to demonstrate that it had met its obligations.

The Court ordered Alarcorp to pay pecuniary penalties totalling $10,800 for its contraventions. Additionally, Alarcorp was ordered to pay the FWO's costs of the proceedings.

Orders