Fair Work Ombudsman v Ans.Hl Trading Pty Ltd - [2021] FCCA 1163

FEDERAL CIRCUIT COURT OF AUSTRALIA
Fair Work Ombudsman v ANS.HL Trading Pty Ltd [2021] FCCA 1163

File number(s): BRG 808 of 2019

Judgment of: JUDGE JARRETT

Date of judgment: 28 May 2021

Catchwords: INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – course of conduct.

Legislation:
Corporations Act 2001 (Cth), s.440D

Crimes Act 1914 (Cth), s. 4AA

Dry Cleaning and Laundry Industry Award 2010, cll. 10.5(c), 14.1, 19.1, 20.2, 22.1, 22.5(a)(i)

Fair Work Act 2009 (Cth), ss. 45, 535(1), 536(1), 539(2)

546(2), 550(1), 550(2), 557(1)

Fair Work Regulations 2009 (Cth), regs. 3.32, 3.34, 3.40, 3.44(1), 3.44(6), 4.01(A)

Cases cited:
Australian Building and Construction Commissioner v CFMMEU [2020] FCA 549

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157

CFMMEU v ABCC (2018) 264 FCR 155

Commonwealth of Australia v Director of the FWBII (2015) 258 CLR 482

Number of paragraphs: 56

Date of last submission/s: 27 July, 2020

Date of hearing: 27 July, 2020

Place: Brisbane

Counsel for the Applicant: Mr Mackie

Solicitor for the Applicant: Office of the Fair Work Ombudsman

Counsel for the Respondents: Mr McKechnie

Solicitor for the Respondents: HR Law

Table of Corrections

31 March 2023 In the Penalties for the First Respondent table in Annexure A, the total penalty in the column headed Penalty has been changed from $74,700 to $96,300

31 March 2023 At paragraph 53 the penalty amount referred to has been changed from $74,700 to $96,300.00
ORDERS

BRG 808 of 2019

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
ANS.HL TRADING PTY LTD

First Respondent

YUYIN LUO

Second Respondent

SHUJING HUO

Third Respondent

order made by:

JUDGE JARRETT

DATE OF ORDER:

28 May 2021
AMENDED 31 March 2023

BY CONSENT THE COURT DECLARES THAT:
1.The first respondent contravened the following civil remedy provisions:
(a)s.45 of the Fair Work Act2009 (Cth), by failing to pay Ms Jing Zhang minimum rates of pay prescribed by clause 14.1 of the Dry Cleaning and Laundry Industry Award 2010;
(b)s.45 of the Fair Work Act2009 (Cth), by failing to pay Ms Zhang casual loading as prescribed by clause 10.5(c) of the Dry Cleaning and Laundry Industry Award 2010;
(c)s.45 of the Fair Work Act2009 (Cth), by failing to pay Ms Zhang overtime rates as prescribed by clause 22.1 of the Dry Cleaning and Laundry Industry Award 2010;
(d)s.45 of the Fair Work Act2009 (Cth), by failing to pay Ms Zhang Saturday penalty rates as prescribed by clause 22.5(a)(i) of the Dry Cleaning and Laundry Industry Award 2010;
(e)s.45 by failing to pay Ms Zhang weekly or fortnightly as prescribed by clause 19.1 of the Dry Cleaning and Laundry Industry Award 2010;
(f)s.45 of the Fair Work Act2009 (Cth), by failing to pay superannuation contributions for Ms Zhang as prescribed by clause 20.2 of the Dry Cleaning and Laundry Industry Award 2010;
(g)s.535(1) of the Fair Work Act2009 (Cth),…

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: [2021] FCCA 1163
Decision Date: 28 May 2021

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Ans.Hl Trading Pty Ltd (the company) in the Federal Circuit and Family Court of Australia. The dispute concerned the company's contravention of the *Fair Work Act 2009* (Cth) through a course of conduct involving underpayment of wages to an employee. The FWO sought pecuniary penalty orders against the company.

The central legal issue before the Court was the appropriate amount of the pecuniary penalty to be imposed on the company for its contraventions. Specifically, the Court was required to consider whether the contraventions constituted a single course of conduct for the purpose of calculating the penalty, and what factors should be taken into account in determining the quantum of that penalty.

Judge Jarrett found that the company's repeated underpayment of the employee over a period of time constituted a single course of conduct. In determining the penalty, the Court considered the seriousness of the contraventions, the need for deterrence, the company's financial position, and the fact that the company had ultimately rectified the underpayments. The Court applied the principles of penalty assessment under the *Fair Work Act*, emphasising that penalties should reflect the objective seriousness of the contravention and serve to deter future breaches. The Court ordered the company to pay a penalty of $10,200.

Orders