Fair Work Ombudsman v BERGES - [2010] FMCA 526

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v BERGES

[2010] FMCA 526

INDUSTRIAL LAW – Underpayment of wages by employer – particular vulnerability as one employee disabled – five breaches and no elements of commonality – penalty hearing – factors to determine penalty.

Crimes Act 1914 (Cth)
Fair Work Act 2009 (Cth)
Fair Work Transitional Provisions and Consequential Amendments Act 2009 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Workplace Relations Act 1996 (Cth)

Cotis v Pow Juice Proprietary Limited [2007] FMCA 140
CPSU v Telstra Corporation [2001] FCA 1364
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Proprietary Limited trading as Pangaea Restaurant and Bar[1] [2007] FMCA 7
Ponzio v B & P Caelli Construction Pty Ltd (2007) 158 FCR 543
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Trade Practices Commission v TNT Australia Propriety Limited [1995] ATPR 40, 161

[1] [2007] FMCA 7

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

ERICK BERGES

File Number:

BRG 1002 of 2009

Judgment of:

Burnett FM

Hearing date:

17 June 2010

Date of Last Submission:

17 June 2010

Delivered at:

Brisbane

Delivered on:

17 June 2010

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Clayton Utz

Counsel for the Respondent:

Solicitors for the Respondent:

No appearance by or for the Respondent

ORDERS

That the Respondent has in relation to Mr Nielsen’s employment, pursuant to 728(1) of the Workplace Relations Act 1996 (Cth) breached:
(a)section 182(1) of the Workplace Relations Act 1996 (Cth);
(b)section 185(2) of the Workplace Relations Act 1996 (Cth);
(c)clause 7.6 of the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002, a Notional Agreement Preserving State Award;
(d)clause 5.4 of the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002, a Notional Agreement Preserving State Award.
That the Respondent has in relation to Mr Vukovich’s employment, pursuant to 728(1) of the Workplace Relations Act 1996 (Cth) breached:
(a)section 182(1) of the Workplace Relations Act 1996 (Cth);
(b)section 185(2) of the Workplace Relations Act 1996 (Cth);
(c)clause 6.4 of the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002, a Notional Agreement Preserving State Award.
That pursuant to section 719(1) of the Workplace Relations Act 1996 (Cth), by way of section 728 of the Workplace Relations Act 1996 (Cth), the respondent pay a penalty of $19,800 in respect of his involvement in the contraventions identified at paragraphs 1 and 2 above, as follows:
(a)$4,950 for a breach of section 182(1) of the Workplace Relations Act 1996 (Cth).
(b)$4,950 for a breach of section 185(2) of the Workplace Relations Act 1996 (Cth).
(c)$2,200 for a breach of clause 7.6 of the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002, a Notional Agreement Preserving State Award.
(d)$3,850 for a breach of clause 5.4 of the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002, a Notional Agreement Preserving State Award.

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.

Continue reading Fair Work Ombudsman v BERGES

Details

AGLC: Fair Work Ombudsman v BERGES [2010] FMCA 526
Case: [2010] FMCA 526
Decision Date: 17 June 2010

CaseChat Overview and Summary

In the Fair Work Ombudsman v BERGES, the Fair Work Ombudsman brought an action against Berges regarding alleged breaches of employment law in relation to two employees, Mr Nielsen and Mr Vukovich. The case was heard in the Fair Work Commission, which is Australia's independent statutory body responsible for regulating the nation's workplace relations system.

The court had to decide whether the employer had breached specific sections of the Workplace Relations Act 1996 and clauses within the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002. The primary issues were whether the employer had failed to pay entitlements to the employees and had not provided required information to employees regarding their employment conditions.

The court found that the employer had indeed breached the specified sections of the Workplace Relations Act 1996 and clauses in the Award. The employer failed to pay the employees their entitled wages, failed to provide payment summaries, and did not ensure that employees had access to their employment agreements. The penalties were assessed based on the severity of the breaches and the financial impact on the employees. The court ordered the employer to pay penalties and to compensate the employees for the unpaid entitlements.

Orders

Orders of the court

That the Respondent has in relation to Mr Nielsen’s employment, pursuant to 728(1) of the Workplace Relations Act 1996 (Cth) breached:

(a) section 182(1) of the Workplace Relations Act 1996 (Cth);

(b) section 185(2) of the Workplace Relations Act 1996 (Cth);

(c) clause 7.6 of the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002, a Notional Agreement Preserving State Award;

(d) clause 5.4 of the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002, a Notional Agreement Preserving State Award.

That the Respondent has in relation to Mr Vukovich’s employment, pursuant to 728(1) of the Workplace Relations Act 1996 (Cth) breached:

(a) section 182(1) of the Workplace Relations Act 1996 (Cth);

(b) section 185(2) of the Workplace Relations Act 1996 (Cth);

(c) clause 6.4 of the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002, a Notional Agreement Preserving State Award.

That pursuant to section 719(1) of the Workplace Relations Act 1996 (Cth), by way of section 728 of the Workplace Relations Act 1996 (Cth), the respondent pay a penalty of $19,800 in respect of his involvement in the contraventions identified at paragraphs 1 and 2 above, as follows:

(a) $4,950 for a breach of section 182(1) of the Workplace Relations Act 1996 (Cth).

(b) $4,950 for a breach of section 185(2) of the Workplace Relations Act 1996 (Cth).

(c) $2,200 for a breach of clause 7.6 of the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002, a Notional Agreement Preserving State Award.

(d) $3,850 for a breach of clause 5.4 of the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002, a Notional Agreement Preserving State Award.

(e) $3,850 for a breach of clause 6.4 of the Hospitality Industry – Restaurant, Catering and Allied Establishment Award – South-Eastern Division 2002, a Notional Agreement Preserving State Award.

That pursuant to section 841 of the Workplace Relations Act 1996 (Cth) that the penalty be paid to the following persons and the Commonwealth Consolidated Revenue Fund in the following amounts:

(a) $10,793.13 to Mr Paul Nielsen;

(b) $4,073.18 to Mr Dallas Vukovich; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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