Fair Work Ombudsman v Bottcher

Case [2010] FMCA 956


FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v BOTTCHER & ANOR [2010] FMCA 956
INDUSTRIAL LAW – Application for civil penalty – breaches of the WR Act – applicable provisions – underpayments – breaches of freedom of association provisions – threat to dismiss – threat to injure in employment – breaches admitted – considerations as to penalty.
Workplace Relations Act 1996 (Cth), ss.719, 722, 728, 807, 841
Fair Work Act 2009 (Cth), s.701
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Kelly v Fitzpatrick (2007) 166 IR 14
Mason v Harrington Corporation PtyLtd [2007] FMCA 7
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Fair Work Ombudsman v Roselands Fruit Market Pty Ltd & Anor [2010] FMCA 599
Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCA FC 72
Ponzio v B & P Caelli Construction Pty Ltd (2007) 158 FCR 543
Smith v Prescott & Ors [2008] FMCA 1672
Applicant: FAIR WORK OMBUDSMAN
First Respondent: GISELA BOTTCHER
Second Respondent: WOLFGANG BOTTCHER
File Number: MLG 1315 of 2009
Judgment of: O’Sullivan FM
Hearing date: 7 December 2010
Date of Last Submission: 7 December 2010
Delivered at: Melbourne
Delivered on: 9 December 2010

REPRESENTATION

Counsel for the Applicant: Mr J. Kirkwood
Solicitors for the Applicant: Fisher Cartwright Berriman
Counsel for the First and Second Respondent: Ms J. MacLean
Solicitors for the First and Second Respondent: Rigby Cooke

UPON THE FINDINGS AND FACTS SET OUT AT ATTACHMENT A & B TO THESE REASONS THE COURT ORDERS:

  1. Pursuant to sections 719(1) and 807(1)(a) of the WR Act, the Respondents pay a penalty of $18,480.00 in respect of the Underpayment Contraventions (as defined in the amended application) and the FOA Contraventions (as defined in the amended application).

  2. Pursuant to section 807(1)(b) of the WR Act, the Respondents pay Adamopoulos compensation of $714.50.

  3. Pursuant to section 841(a) of the WR Act, the Respondents pay the penalty to the Consolidated Revenue Fund of the Commonwealth.

  4. Within 3 days of these orders being made, trust funds of $14,746.66 held by the Applicant’s solicitor on behalf of the Respondents are to be paid to the Consolidated Revenue Fund of the Commonwealth as part payment of the total penalty ordered against the Respondents.

  5. The compensation amount of $714.50 (being the amount in paragraph 2) be paid within 30 days of the date of this Order.

  6. The outstanding penalty amount of $3,733.34 (being the amount in paragraph 1 less the amount in paragraph 4 be paid by five monthly instalments of $746.66 commencing within 60 days of the date of this Order, or otherwise be stayed for a period of 6 months.

  7. The proceedings be otherwise dismissed with no order for costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1315 of 2009

FAIR WORK OMBUDSMAN

Applicant

And

GISELA BOTTCHER

First Respondent

WOLFGANG BOTTCHER

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. In these proceedings the Fair Work Ombudsman (“the applicant”) seeks a series of orders against…

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AGLC
Fair Work Ombudsman v Bottcher [2010] FMCA 956
Case
[2010] FMCA 956
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman (the applicant) commenced proceedings against Gisela Bottcher (the first respondent) and Wolfgang Bottcher (the second respondent) in relation to alleged breaches of the Workplace Relations Act 1996 (Cth) (the WR Act). The proceedings were brought pursuant to sections 719 and 807 of the WR Act. The applicant alleged that the respondents underpaid employees, engaged in conduct which contravened the freedom of association provisions of the WR Act and engaged in conduct which breached applicable provisions of the relevant awards. The respondents admitted all the breaches alleged by the applicant. The court accepted the admissions of the respondents and found that they had contravened the relevant provisions of the WR Act and awards. The court made orders in relation to the penalties, underpayments and compensation. The respondents were ordered to pay a penalty of $18,480 and to pay compensation of $714.50. The penalty was to be paid to the Consolidated Revenue Fund of the Commonwealth. The compensation was to be paid to an employee who was dismissed in contravention of the freedom of association provisions of the WR Act. The penalty and compensation were to be paid in instalments over a period of time.

Orders

Orders of the court

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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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