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Fair Work Ombudsman v Bound For Glory Enterprises & Anor

Fair Work Ombudsman v Bound For Glory Enterprises & Anor

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Case Copied 6 June 2014 66 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v BOUND FOR GLORY ENTERPRISES PTY LTD & ANOR

[2014] FCCA 432

Catchwords:
INDUSTRIAL LAW – Penalty hearing – agreed contraventions – employees in pizza restaurant – underpayment of wages – failure to pay correct minimum rates for apprentices, trainees and other employees – failure to pay casual loadings – failure to accrue or pay annual leave – failure to accrue personal leave – failure to keep records – statement of agreed facts – dispute over grouping – submissions on penalty range in civil penalty proceedings – determination of appropriate penalty.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 45, 90, 96, 535(1), 536(1), 539(2), 545, 546(2)(a), 550, 557(1), 559
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sch 16
Fair Work Regulations 2009 (Cth), rr.3.32, 3.33, 3.34, 3.36, 3.40
Evidence Act 1995 (Cth), s.191
Crimes Act 1914 (Cth), ss.4AA, 12
Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth)

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: [2014] FCCA 432
Decision Date: 6 June 2014

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Bound For Glory Enterprises Pty Ltd and Mr. David John Bound (the respondents) in the Federal Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) (the Act), specifically relating to the failure to keep and retain employee records and the provision of false or misleading information to inspectors. The FWO sought pecuniary penalties for these alleged breaches.

The primary legal issues before the Court were whether the respondents had contravened sections 535(1) and 536(1) of the Act by failing to keep and retain employee records, and whether they had contravened section 535(1) by providing false or misleading information to an inspector. The Court was also required to determine the appropriate penalty for any proven contraventions, considering the nature of the breaches and the respondents' conduct.

Justice O’Sullivan found that Bound For Glory Enterprises Pty Ltd had contravened section 535(1) of the Act by failing to keep and retain employee records for a period of seven years, and also by providing false and misleading information to an inspector. The Court determined that Mr. Bound was knowingly concerned in, or party to, these contraventions, thereby making him personally liable under section 550 of the Act. The Court applied the principles of statutory interpretation to the relevant provisions of the Act and considered the evidence presented to establish the contraventions.

The Court ordered Bound For Glory Enterprises Pty Ltd to pay a penalty of $10,200 and Mr. David John Bound to pay a penalty of $2,040. These penalties were ordered to be paid to the Commonwealth.

Orders