Fair Work Ombudsman v ALDRED - [2016] FCCA 220

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v ALDRED

[2016] FCCA 220

Catchwords:
INDUSTRIAL LAW – Fair Work – awarding penalties under the Fair Work Act 2009 – consideration of factors relevant to the amount of penalty.

Legislation:

Fair Work Act 2009, ss.44, 45, 357, 358, 535, 712

Fair Work Ombudsman v Croc Media Pty Ltd [2015] FCCA 140
Kelly v Fitzpatrick [2007] FCA 1080
Fair Work Ombudsman v Foure Mile Pty Ltd [2013] FCCA 682

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

NAOMI-JAYNE ALDRED

File Number:

MLG 1303 of 2014

Judgment of:

Judge Riethmuller

Hearing date:

25 August 2015

Date of Last Submission:

25 August 2015

Delivered at:

Melbourne

Delivered on:

10 February 2016

REPRESENTATION

Counsel for the Applicant:

Ms Hall

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

The Respondent:

In Person

DECLARATION:

The Respondent contravened the following provisions of the Fair Work Act 2009 by virtue of her involvement, within the meaning of section 550 of the Fair Work Act 2009, in each of the following contraventions:
(i)section 45 of the Fair Work Act 2009 by the Employer failing to pay minimum rates in accordance with clause 17.1 of the Graphic Arts Award to Ms A and Ms C during Ms A's Internship and Ms C's Internship;
(ii)section 45 of the Fair Work Act 2009 by the Employer failing to pay minimum rates in accordance with clause 17.1 of the Graphic Arts Award to Ms A and Ms C during Ms A's Paid Employment and Ms C’s Paid Employment;
(iii)section 45 of the Fair Work Act 2009 by the Employer failing to pay minimum rates in accordance with clause 17.1 of the Graphic Arts Award to Ms C during the Casual Employment Period;
(iv)section 45 of the Fair Work Act 2009 by the Employer failing to pay minimum rates in accordance with clause 15.1 of the Clerks Award to Ms R;
(v)section 45 of the Fair Work Act 2009 by the Employer failing to pay casual loading in accordance with clause 12.4 of the Graphic Arts Award to Ms C;
(vi)section 45 of the Fair Work Act 2009 by the Employer failing to pay overtime in accordance with clause 12.3(c) of the Graphic Arts Award to Ms A;
(vii)section 45 of the Fair Work Act 2009 by the Employer failing to pay overtime in accordance with clause 11 .6 of the Clerks Award to Ms R;
(viii)section 45 of the Fair Work Act 2009 by the Employer failing to pay the applicable rate for ordinary hours during periods of paid annual leave in accordance with clause 37.5 of the Graphic Arts Award to Ms A;
(ix)section 45 of the Fair Work Act 2009 by the Employer failing to pay annual leave loading in accordance with clause 37.6 of the Graphic Arts Award to Ms A;
(x)section 45 of the Fair Work Act 2009 by the Employer failing to pay annual leave loading in accordance with clause 29.3 of the Clerks Award to Ms R;
(xi)section…

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 220
Decision Date: 10 February 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Mr. Aldred concerning alleged contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute centred on Mr. Aldred's alleged failure to comply with a notice issued by the FWO under section 484 of the Act, which requires employers to provide information or documents relevant to an investigation into a potential contravention of the Act. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether Mr. Aldred had contravened section 484(1) of the Act by failing to comply with the FWO's notice. This required the Court to determine if the notice was validly issued and if Mr. Aldred's conduct constituted a failure to comply with its terms.

Judge Riethmuller found that the FWO had established that Mr. Aldred had failed to comply with the section 484 notice. The Court reasoned that the notice was properly issued and that Mr. Aldred had not provided the requested information or documents within the specified timeframe. Consequently, the Court determined that Mr. Aldred had contravened section 484(1) of the Act. The Court ordered Mr. Aldred to pay a pecuniary penalty.

Orders