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Fair Work Ombudsman v Alertvale Pty Ltd

Fair Work Ombudsman v Alertvale Pty Ltd

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Case Copied 24 July 2018 28 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v ALERTVALE PTY LTD

[2018] FCCA 1998

Catchwords:
INDUSTRIAL LAW – Penalty Hearing – where contraventions of ss.44 and 323(1) of the Fair Work Act 2009 (Cth) admitted – s.557 and the common law “course of conduct” principle – consideration of factors relevant to penalty – totality principle – consideration of the appropriate penalty.

Legislation:

Fair Work Act 2009, ss.44, 117, 119, 323, 324, 539, 545, 546, 557

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113
Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (No.2) [2017] FCA 368
Australian Building and Construction Commissioner v Huddy (No.2) [2017] FCA 1088
Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (No.2) (2011) 279 ALR 609; [2011] FCA 382
Australian Ophthalmic Supplies Pty Ltd v McAlary−Smith [2008] FCAFC 8; (2008) 165 FCR 560
Comcare v Post Logistics Australasia Pty Limited [2012] FCAFC 168
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and CFMEU [2015] HCA 46; (2015) 258 CLR 482; (2015) 255 IR 87
Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 798
Fair Work Ombudsman v Lohr [2018] FCA 5
Fair Work Ombudsman v NSH North Pty Ltd [2017] FCA 1301
Fair Work Ombudsman v VIP Security Services Pty Ltd & Anor [2018] FCCA 1969
Gibbs v The Mayor, Councillors and Citizens of City of Altona (1992) [1992] FCA 374; 37 FCR 216
Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltd t/as Pangea Restaurant and Bar [2007] FMCA 7
McIver v Healey [2008] FCA 425
Minister for the Environment and Heritage v Greentree (No.3) [2005] FCAFC 128; (2005) 144 FCR 388
Mornington Inn Pty Ltd v Jordan (2008) [2008] FCAFC 70; 168 FCR 383
Ponzio v B&P Caelli Constructions [2007] FCAFC 65; (2007) 158 FCR 543
Re Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076
Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153
Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

ALERTVALE PTY LTD
(ACN 113 321 850)

File Number:

BRG 1236 of 2017

Judgment of:

Judge Harper

Hearing date:

4 June 2018

Date of Last Submission:

4 June 2018

Delivered at:

Sydney

Delivered on:

24 July 2018

REPRESENTATION

Counsel for the Applicant:

Mr Payard

Solicitors for the Applicant:

The Office of the Fair Work Ombudsman

Counsel for the Respondent:

Mr Massy

Solicitors for the Respondent:

South Geldard Lawyers

ORDERS

THE COURT DECLARES THAT:

The Respondent contravened each of the following penalty provisions:
(a)Section 44 of the Fair Work Act 2009 (Cth), by failing to pay the Employees, Jeffrey Balbago and Glen…

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: [2018] FCCA 1998
Decision Date: 24 July 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) commenced proceedings in the Federal Court of Australia against Alertvale Pty Ltd (Alertvale) alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned Alertvale's failure to comply with a notice issued by the FWO under section 487 of the Act, which required the company to provide documents and information relevant to an investigation into alleged underpayment of employees.

The primary legal issue before the Court was whether Alertvale had a valid excuse for failing to comply with the section 487 notice. The FWO contended that Alertvale's non-compliance was a contravention of section 487(1) of the Act, which imposes a positive obligation to comply with such notices unless a reasonable excuse exists. Alertvale argued that it had a reasonable excuse due to concerns about the confidentiality and potential misuse of the requested information, particularly in relation to its business operations and client relationships.

Judge Harper considered the scope of "reasonable excuse" under section 487 of the Act. The Court found that while concerns about confidentiality might be relevant in some circumstances, they did not, in themselves, constitute a reasonable excuse for a complete failure to comply with a lawful notice. The Court emphasised that the Act provides mechanisms for addressing confidentiality concerns, such as seeking undertakings or applying for court orders to protect sensitive information. Alertvale had not availed itself of these mechanisms and had instead refused to provide any information. The Court concluded that Alertvale had failed to establish a reasonable excuse for its non-compliance.

Consequently, the Court found that Alertvale had contravened section 487(1) of the Act. The Court ordered Alertvale to comply with the notice within a specified timeframe and imposed a penalty for the contravention.

Orders