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.
UPON THE FINDINGS AND FACTS SET OUT AT ATTACHMENT A & B TO THESE REASONS THE COURT ORDERS:
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).
Pursuant to section 807(1)(b) of the WR Act, the Respondents pay Adamopoulos compensation of $714.50.
Pursuant to section 841(a) of the WR Act, the Respondents pay the penalty to the Consolidated Revenue Fund of the Commonwealth.
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.
The compensation amount of $714.50 (being the amount in paragraph 2) be paid within 30 days of the date of this Order.
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.
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
In these proceedings the Fair Work Ombudsman (“the applicant”) seeks a series of orders against…
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
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.