Fair Work Ombudsman v AUSTY Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v AUSTY PTY LTD & ANOR [2011] FMCA 867

INDUSTRIAL LAW – Penalty hearing for contraventions of ss.182(1) and 185(2) of the Workplace Relations Act 1996 (Cth) – failure to adhere to minimum wage standards – failure to pay casual loading – involvement of company manager in contravention – where agreed statement of facts – where breaches admitted – imposition of penalty – factors relevant to calculation of penalty.

Minimum Conditions of Employment Act 1993 (WA)
Workplace Relations Act 1996 (Cth), ss.182(1), 185(2), 719(2)

AWU v QCC [2005] QIRComm 123; 179 QGIG 882 (15 August 2005)
Alfred v the CFMEU [2011] FCA 556
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65

Applicant: FAIR WORK OMBUDSMAN

First Respondent: AUSTY PTY LTD

Second Respondent: KIYOMI MARUOKA

File Number: PEG 169 of 2011

Judgment of: Raphael FM

Hearing date: 8 November 2011

Date of Last Submission: 8 November 2011

Delivered at: Perth

Delivered on: 8 November 2011

REPRESENTATION

Counsel for the Applicant: Mr G Spain

Solicitors for the Applicant: Fair Work Ombudsman

Counsel for the Respondents: Ms R Airey

Solicitors for the Respondents: McDonald Balanda & Associates

ORDERS

1. The appropriate penalty payable by the First Respondent for breach of:

   (a)s.182(1) of the Workplace Relations Act 1996 (Cth) is $13,000; and

   (b)s.185(2) of the Workplace Relations Act 1996 (Cth) is $10,000,

   payable within 2 months.

2. The appropriate penalty payable by the Second Respondent for breach of s.182(1) of the Workplace Relations Act 1996 (Cth) is $2,500, payable within 3 months.

3. Both penalties are payable to the Commonwealth.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 169 of 2011

FAIR WORK OMBUDSMAN

Applicant

And

AUSTY PTY LTD

First Respondent

KIYOMI MARUOKA

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application by the Fair Work Ombudsman for penalties against the First and Second Respondent for breaches of the former Workplace Relations Act 1996 (Cth)[1], arising out of the underpayment of certain employees in both Western Australia and Queensland.  Although the First Respondent is an Australian company, it is wholly owned by Japanese interests, and the Second Respondent is a Japanese national.  The business operated by the First Respondent through the Second Respondent, its manager, is that of providing wedding planning facilities to Japanese nationals who wish to be married in Australia.

   [1] “WR Act”.

2. The original application to this Court was made on 24 June in this year, and was supported by a Statement of Claim. Since the commencement of the proceedings, the parties have agreed on a Statement of Facts which was filed in this Registry on 4 November 2011. The First Respondent admits breaches of sections 182(1) and 185(2) of the WR Act.  The Second Respondent admits that she was a person involved in the contraventions.

3. The Agreed Statement of Facts notes that from 27 March 2006, the First Respondent was bound to pay its:

   a)Western Australian employees in accordance with…