Fair Work Ombudsman v Bundaberg Security Pty Ltd - [2014] FCCA 592

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v BUNDABERG SECURITY PTY LTD & ANOR

[2014] FCCA 592

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties, grouping of contraventions.

Legislation:

Fair Work Act 2009 (Cth), ss.45, 536(1)(b), 539(2), 545(2)(b), 546(1), 550(2), 557(1), 728(2),

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), items 2(1) and 5 of Schedule 16,
Workplace Relations Act 1996 (Cth), ss.182(1), 185(2)
Workplace Relations Regulations 2006 (Cth), reg.19.20

Fair Work Ombudsman v Kensington Management Services Pty Ltd (No.2) [2012] FMCA 586
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

BUNDABERG SECURITY PTY LTD

Second Respondent:

RODNEY LYNN HARRIS

File Number:

BRG 469 of 2013

Judgment of:

Judge Jarrett

Hearing date:

4 March, 2014

Date of Last Submission:

4 March, 2014

Delivered at:

Brisbane

Delivered on:

25 March, 2014

REPRESENTATION

Counsel for the Applicant:

Ms Garner

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the First Respondent:

Mr Ebert

Solicitors for the First Respondent:

Finemore Walters & Story

Counsel for the Second Respondent:

Mr Ebert

Solicitors for the Second Respondent:

Finemore Walters & Story

THE COURT DECLARES THAT:

During the period from 1 July, 2007 to 30 June, 2009 the First Respondent contravened:
(a)s.182(1) of the Workplace Relations Act1996 (Cth) in that it failed to pay Jason Ramett the minimum wage to which he was entitled;
(b)s.185(2) of the Workplace Relations Act in that it failed to pay Jason Ramett casual loading to which he was entitled;
(c)cl.6.7 of the Notional Agreement Preserving a State Award derived from the Security Industry (Contractors) Award-State 2004 in that it failed to pay Jason Ramett penalty rates for permanent night work to which he was entitled;
(d)cl.6.8 of the Security Industry NAPSA in that it failed to pay Jason Ramett penalty rates for work performed on a Sunday to which he was entitled;
(e)cl.7.6.5 of the Security Industry NAPSA in that it failed to pay Jason Ramett penalty rates for work performed on public holidays to which he was entitled;
During the period from 1 July, 2007 to 30 June, 2009 the First Respondent contravened reg.19.20 of the Workplace Relations Regulations2006 (Cth) by failing to give payslips to Jason Ramett during the said period;
During the period from 1 July, 2009 to 31 December, 2009 the First Respondent contravened:
(a)item 5 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth) in that it failed to pay Jason Ramett the minimum wage, casual leave loading, Sunday penalty rates, public holiday penalty rates and permanent night work allowances to which he was entitled; and
(b)item 2(1) of Schedule 16 of the Transitional Act by failing to give payslips to Jason Ramett during the period of his employment;
During the period from 1…

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 592
Decision Date: 25 March, 2014

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Bundaberg Security Pty Ltd (the Company) in the Federal Circuit Court of Australia. The dispute concerned allegations that the Company had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay its employees, who were engaged as security guards, the minimum wages and entitlements prescribed by the relevant modern award, specifically the *Security Services Industry Award 2010*. The FWO sought pecuniary penalties for these alleged contraventions.

The primary legal issue before the Court was whether the Company had contravened the *Fair Work Act 2009* (Cth) by failing to pay its employees the minimum rates of pay and other entitlements, such as overtime and penalty rates, as stipulated in the *Security Services Industry Award 2010*. This involved determining the correct classification of the employees and the applicable award provisions for the work they performed. The Court also had to consider whether the Company's conduct constituted a contravention of the Act, and if so, what penalty was appropriate.

Judge Jarrett found that the Company had indeed contravened the *Fair Work Act 2009* (Cth) by failing to pay its security guards the minimum wages and entitlements required by the *Security Services Industry Award 2010*. The Court reasoned that the Company had not adequately demonstrated that the employees were correctly classified or that the payments made met the award requirements. The decision underscored the importance of employers ensuring compliance with modern awards and the consequences of failing to do so, particularly in relation to minimum wage obligations. The Court ordered the Company to pay pecuniary penalties for the contraventions.

Orders