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Fair Work Ombudsman v Blu Hornsby Pty Ltd

Fair Work Ombudsman v Blu Hornsby Pty Ltd

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Case Copied 27 May 2016 23 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v BLU HORNSBY PTY LTD & ANOR

[2016] FCCA 1150

Catchwords:
INDUSTRIAL LAW – Penalty – contraventions of modern award relating to remuneration –failure to comply with issued Compliance Notice – appropriate penalty to be imposed – relevant considerations – applicable penalty unit.

Legislation:

Crimes Act 1914 (Cth), s.4AA

Fair Work Act 2009, ss.539, 546, 550, 716, 717
Restaurant Industry Award 2010, cl.B.3.6 of sch.B

Cases cited:
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46
Fair Work Ombudsman v Anahata Naturals Pty Ltd [2014] FCCA 2954
Fair Work Ombudsman v Hair Industrie Mt Druitt Pty Ltd [2015] FCCA 3426
Fair Work Ombudsman v Syndicate Group Pty Ltd [2015] FCCA 2847
Fair Work Ombudsman v Ultra Tune Australia Ltd (2012) 225 IR 326; [2012] FMCA 560
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

BLU HORNSBY PTY LTD
(ACN 131 513 258)

Second Respondent:

ARTHUR ANTONOPOULOS

File Number:

SYG 1482 of 2015

Judgment of:

Judge Smith

Hearing date:

3 February 2016

Date of Last Submission:

3 February 2016

Delivered at:

Sydney

Delivered on:

27 May 2016

REPRESENTATION

Solicitor for the Applicant:

Ms A. Dunn, Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr J. Darams

Solicitors for the Respondents:

Andresakis & Associates

DECLARATIONS MADE BY CONSENT

The first respondent contravened subsection 716(5) of the Fair Work Act 2009 (Cth) (“FW Act”) by failing to comply with the Compliance Notice dated 4 March 2015.
The second respondent was involved in, within the meaning of subsection 550(2) of the FW Act, the first respondent’s contravention of subsection 716(5) of the FW Act and is therefore taken to have committed that contravention pursuant to subsection 550(1) of the FW Act.

ORDERS

Pursuant to section 546(1) of the FW Act:
(a)The first respondent pay a pecuniary penalty of $14,025, in respect of its contravention of section 716(5) of the FW Act; and
(b)The second respondent pay a penalty of $2,805, in respect of his contravention of section 716(5) of the FW Act.
Pursuant to section 546(3) of the FW Act, the penalties so ordered are to be paid into the Commonwealth Revenue Fund within 28 days of the date of this order.
The applicant have liberty to apply on seven days’ written notice in the event that any of the preceding orders are not complied with.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1482 of 2015

FAIR WORK OMBUDSMAN

Applicant

And

BLU HORNSBY PTY LTD
(ACN 131 513 258)

First Respondent

ARTHUR ANTONOPOULOS

Second Respondent

REASONS FOR JUDGMENT

The first respondent (“Blu Hornsby”) operated a café called Wild Sage Café in Cammeray, New South Wales. The second respondent, Mr Antonopoulos, was the sole director and shareholder of that business and responsible for the overall direction, management and supervision of the business’ operations.
From 26 November…

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: [2016] FCCA 1150
Decision Date: 27 May 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Blu Hornsby Pty Ltd (the employer) in the Federal Circuit and Family Court of Australia. The dispute concerned allegations that the employer had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay an employee their minimum entitlements, specifically in relation to overtime and penalty rates.

The primary legal issue before the Court was whether the employer had breached its obligations under the *Fair Work Act* by underpaying the employee. This involved determining the correct interpretation and application of the relevant award provisions concerning ordinary hours of work, overtime entitlements, and penalty rates for work performed outside of standard hours. The Court was also required to consider whether the employer had a valid defence or if the contraventions were wilful.

Judge Smith found that the employer had indeed contravened the *Fair Work Act* by failing to pay the employee the correct overtime and penalty rates as stipulated by the applicable award. The Court reasoned that the employer's record-keeping was inadequate and that the evidence presented did not support the employer's contentions regarding the employee's working arrangements. The principles applied centred on the employer's statutory duty to ensure employees receive their minimum entitlements and the importance of accurate record-keeping to demonstrate compliance.

The Court ordered Blu Hornsby Pty Ltd to pay the outstanding wages to the employee and imposed a pecuniary penalty for the contraventions.

Orders