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Fair Work Ombudsman v Amritsaria Four Pty Ltd

Fair Work Ombudsman v Amritsaria Four Pty Ltd

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Case Copied 29 April 2016 59 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v AMRITSARIA FOUR PTY LTD & ANOR

[2016] FCCA 968

Catchwords:
INDUSTRIAL LAW – Penalty – contraventions of modern award relating to remuneration – failure to keep records – failure to keep records that were not false and misleading – liability conceded – appropriate penalty to be imposed – relevant considerations – applicable penalty unit.

Legislation:

Acts Interpretation Act1901 (Cth), s.10

Building and Construction Industry Improvement Act2005 (Cth)

Crimes Act 1914 (Cth), s.4AA
Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth)
Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth), item 9(1) of sch.3

Fair Work Act 2009 (Cth), ss.3, 45, 47(1), 48(1), 535, 539, 546, 549, 550, 557

Fair Work Regulations 1994 (Cth), regs.3.33, 3.44, 4.01A

Cases cited: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331; [2015] FCAFC 59 Einfeld v The Queen [2010] NSWCCA 87 Fair Work Ombudsman v Bound For Glory Enterprises & Anor [2014] FCCA 432 Fair Work Ombudsman v Cleaners New South Wales Pty Ltd (2009) 186 IR 467; [2009] FMCA 683 Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 Fair Work Ombudsman v Ultra Tune Australia Ltd (2012) 225 IR 326; [2012] FMCA 560 Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 Kenny v The Queen [2010] NSWCCA 6 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70 Murrihy v Betezy.com.au Pty Ltd (No. 2) (2013) 221 FCR 118; [2013] FCA 1146 R v White (New South Wales Court of Criminal Appeal, unreported, 25 July 1991 Ryan v R (2000) 206 CLR 267; [2000] HCA 21 Scolara v Shepherd (No 2) [2010] WASC 271
Applicant:	FAIR WORK OMBUDSMAN

First Respondent:

AMRITSARIA FOUR PTY LTD

(ACN 151 620 245)

Second Respondent:

HARMANDEEP SINGH SARKARIA

File Number:

SYG 1601 of 2015

Judgment of:

Judge Smith

Hearing date:

23 November 2015

Date of Last Submission:

22 April 2016

Delivered at:

Sydney

Delivered on:

29 April 2016

REPRESENTATION

Counsel for the Applicant:

Ms E. Raper

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr N. Furlan

Solicitors for the Respondents:

Harmers Workplace Lawyers

DECLARATIONS MADE BY CONSENT

The first respondent has contravened:
(a)section 45 of the Fair Work Act 2009 (“FW Act”) by failing to pay Aqeel Ahmed and Muhammad Imran Yousaf the minimum casual adult rate for Monday to Friday work as required by clause A.2.5 of Schedule A of the Vehicle, Manufacturing, Repair and Retail Award 2010 (“Modern Award”), by reference to clause 36.3 of the Modern Award;
(b)section 45 of the FW Act by failing to pay Aqeel Ahmed and Muhammad Imran Yousaf Saturday rates as required by clause A.7.3 of Schedule A of the Modern Award, by reference to clause 36.3…

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 968
Decision Date: 29 April 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Amritsaria Four Pty Ltd in the Federal Circuit and Family Court of Australia. The dispute concerned contraventions of a modern award, specifically relating to remuneration, and the company's failure to keep records that were not false and misleading. The company conceded liability for these contraventions.

The central legal issue before the Court was to determine the appropriate penalty to be imposed on Amritsaria Four Pty Ltd for the admitted contraventions. This required the Court to consider various relevant factors in assessing the penalty, including the nature and extent of the contraventions, the company's conduct, and the purpose of penalty provisions under the Fair Work Act 2009 (Cth). The Court also had to consider the applicable penalty unit for the period in which the contraventions occurred.

In its reasoning, the Court applied established principles for determining penalties in workplace law matters. It considered the need for deterrence, both specific and general, and the importance of upholding compliance with modern awards. The Court took into account the company's concession of liability and any mitigating or aggravating factors presented. Ultimately, the Court determined a penalty that reflected the seriousness of the contraventions and the need to ensure future compliance with industrial instruments.

Orders