Fair Work Ombudsman v Bound For Glory Enterprises & Anor

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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)

Bristow v City Petroleum [1987] 1 WLR 529
Plancor Pty Ltd v Liquor Hospitality and Misc Union (2008) 171 FCR 357
Mason v Harrington Corporation Pty Ltd[2007] FMCA 7
Kelly v Fitzpatrick(2007) 166 IR 14
Australian Ophthalmic Supplies Pty Ltd v Mc Alary-Smith [2008] FCAFC 8
Fair Work Ombudsman v Roselands Fruit Market Pty Ltd & Anor [2010] FMCA 599
Veen v The Queen (No.2) [1988] HCA 14
Temple v Powell [2008] FCA 714
Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union (No.2) [2010] FCA 977
Pearce v R (1998) 194 CLR 610
Johnson v R (2004) 205 ALR 346
Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479
Fair Work Ombudsman v Ramsey Food Processing (No.2) [2012] FCA 408
Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216
Cotis v McPherson (2007) 169 IR 30
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Fair Work Ombudsman v Orwill Pty Ltd [2011] FMCA 730
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65
Fair Work Ombudsman v Cleaners New South Wales Pty Ltd [2009] FMCA 683
Fair Work Ombudsman v Revolution Martial Arts Pty Ltd and Anor [2013] FMCA 125
Fair Work Ombudsman v Stewarts Transport and Logistics Pty Ltd and Ors [2010] FMCA 905
Fair Work Ombudsman v Maclean Bay Pty Ltd (No.2) [2012] FCA 557
Fair Work Ombudsman v Bento Kings Meadows [2013] FCCA 977
Barbaro v R [2014] HCA 2
Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62
Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336
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Details
Case
[2014] FCCA 432
Decision Date

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

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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