Fair Work Ombudsman v Baal Gammon Copper Pty Ltd - [2021] FCCA 348

FEDERAL CIRCUIT COURT OF AUSTRALIA
Fair Work Ombudsman v Baal Gammon Copper Pty Ltd [2021] FCCA 348

File number(s): BRG 51 of 2020

Judgment of: JUDGE JARRETT

Date of judgment: 25 February 2021

Catchwords:
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – assessing penalty – contravention deemed to be admitted.

INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – particular cases.

Legislation:
Bankruptcy Act 1966 (Cth), s 82(3)

Fair Work Act 2009 (Cth), ss 90(2), 539(2), 546(1), 546(2), 550(1), 716(2), 716(4A), 716(4B), 716(5)

Federal Circuit Court Rules 2001 (Cth)

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

Cotis v MacPherson (2007) 169 IR 30

Fair Work Ombudsman v Althaus Homes Pty Ltd [2021] FCCA 126

Fair Work Ombudsman v Blu Hornsby Pty Ltd [2016] FCCA 1150

Fair Work Ombudsman v Finetune Holdings Pty Ltd (No 3) [2012] FMCA 883

Fair Work Ombudsman v Garfield Berry Farm Pty Ltd [2011] FMCA 885

Fair Work Ombudsman v Goldfinger Facility Management Pty Ltd (2016) FCCA 356

Fair Work Ombudsman v Nobrace Centre Pty Ltd & Anor (No. 2) [2019] FCCA 2144

Fair Work Ombudsman v Sun Sea Equity Pty Ltd [2021] FCCA 104

Mathers v Commonwealth of Australia (2004) 134 FCR 135

Number of paragraphs: 41

Date of last submission/s: 12 February 2021

Date of hearing: 8 & 12 February 2021

Place: Heard in Brisbane, delivered in Hervey Bay

Solicitor for the Applicant: Office of the Fair Work Ombudsman

The First Respondent: No appearance

Counsel for the Second Respondent: Mr Rawlings, directly instructed
ORDERS

BRG 51 of 2020

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
BAAL GAMMON COPPER PTY LTD (ACN 149 583 933)

First Respondent

DENIS WALTER REINHARDT

Second Respondent

ORDER MADE BY:

JUDGE JARRETT

DATE OF ORDER:

25 FEBRUARY 2021

THE COURT DECLARES THAT:
1.The first respondent contravened s.716(5) of the Fair Work Act 2009 (Cth) by failing to comply with the compliance notice issued pursuant to s.716(2) of the Fair Work Act 2009 (Cth) on 24 October, 2019.
2.The second respondent was involved in the first respondent’s contravention of s.716(5) of the Fair Work Act 2009 (Cth) for the purposes of s.550(1) of the Fair Work Act 2009 (Cth).

THE COURT ORDERS THAT:
3.Pursuant to ss.546(1) and 546(3)(a) of the Fair Work Act 2009 (Cth) the first respondent pay a pecuniary penalty of $20,000.00 to the Commonwealth for the contravention of s.716(5) of the Fair Work Act 2009 (Cth), within 28 days of this order.
4.Pursuant to ss.546(1) and 546(3)(a) of the Fair Work Act 2009 (Cth), the second respondent pay a pecuniary penalty of $3,750.00 to the Commonwealth for his involvement in the contravention of s.716(5) of the Fair Work Act 2009

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 348
Decision Date: 25 February 2021

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Baal Gammon Copper Pty Ltd (Baal Gammon) in the Federal Court of Australia. The dispute concerned Baal Gammon's alleged contravention of the *Fair Work Act 2009* (Cth) by failing to pay its employees their entitlements under the National Employment Standards and an applicable enterprise agreement. The FWO sought pecuniary penalties for these alleged breaches.

The primary legal issue before Jarrett J was whether Baal Gammon had contravened section 50 of the *Fair Work Act 2009* (Cth) by failing to pay minimum rates of pay and other entitlements to its employees. This involved determining the correct interpretation and application of the relevant provisions of the National Employment Standards and the enterprise agreement to the employment arrangements in question.

Jarrett J found that Baal Gammon had contravened section 50 of the *Fair Work Act 2009* (Cth) by failing to pay its employees the minimum rates of pay and other entitlements as required by the National Employment Standards and the relevant enterprise agreement. The court reasoned that the employer had a clear obligation to ensure that employees received at least the minimum entitlements, and that the evidence demonstrated a failure to meet these obligations. The court applied the principles of statutory interpretation to the *Fair Work Act 2009* (Cth) and the enterprise agreement, concluding that the employer's conduct constituted contraventions.

The court ordered Baal Gammon to pay pecuniary penalties totalling $102,300 for the contraventions. Additionally, Baal Gammon was ordered to pay the FWO's costs of the proceedings.

Orders