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 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 |
| 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…
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- Case
- [2016] FCCA 968
- Decision Date
CaseChat Overview and Summary
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.
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