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Fair Work Ombudsman v CARDAMONE

Fair Work Ombudsman v CARDAMONE

Case [2015] FCCA 3238 8 December 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v CARDAMONE

[2015] FCCA 3238

Catchwords:
INDUSTRIAL LAW – Penalties – misrepresentation that employees were independent contractors – failure to pay casual loading, overtime, penalty rates and minimum wages – failure to comply with notices to produce – failure to provide payslips.

Legislation:
Fair Work Act 2009 ss.45, 293, 357(1), 536(1), 539(2), 546(1), 546(2)(a) 546(3)(a), 712(3)

Federal Circuit Court Rules 2001 r.16.05(2)(a)

Cases cited:

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8
Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364
Cotis v McPherson (2007) 169 IR 30; [2007] FMCA 2060; 5 ABC(NS) 405; [2009] ALMD 5310

Darlaston v Risetop Constructions Pty Ltd [2011] FMCA 220
Director, Fair Work Building Industry Inspectorate v Construction, Forestry,
Mining and Energy Union (2015) 105 ACSR 403; (2015) 229 FCR 331; (2015) 320 ALR 631; [2015] FCAFC 59
Fair Work Ombudsman v Bound for Glory Enterprises [2014] FCCA 432
Fair Work Ombudsman v Quest South Perth Holdings (No 2) [2013] FCA 582
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Mornington Inn Pty Ltd v Jordan (2008) 171 IR 455; (2008) 168 FCR 383; (2008) 247 ALR 714; [2008] FCAFC 70
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; (2008) 177 IR 243; [2008] FCAFC 170
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 162 IR 444; (2007) 158 FCR 543; [2007] FCAFC 65
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412

Applicant:

FAIR WORK OMBUDSMAN

First respondent:

FRANCO CARDAMONE

File number:

MLG 1019 of 2015

Judgment of:

Judge Riley

Hearing date:

12 October 2015

Date of last submission:

12 October 2015

Delivered at:

Melbourne

Delivered on:

8 December 2015

REPRESENTATION

Solicitor advocate for the applicant:

Peter Harris

Solicitors for the applicant:

Office of the Fair Work Ombudsman

Counsel for the respondent:

No appearance

Solicitors for the respondent:

The respondent was not represented

THE COURT ORDERS THAT:

Pursuant to s.546(1) of the Fair Work Act 2009, the respondent pay an aggregate penalty of $42,840 in respect of the contraventions referred to in declarations 1(a) to (k) made on 21 August 2015.
Pursuant to s.546(3)(a) of the Fair Work Act 2009, the respondent pay the said penalty to the Consolidated Revenue Fund of the Commonwealth within 28 days.
The applicant have liberty to apply on seven days’ notice in the event that the penalties are not paid within 28 days.

NOTATION
Pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001, the court may vary or set aside a judgment or order made in the absence of a party.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1019 of 2015

FAIR WORK OMBUDSMAN

Applicant

And

FRANCO CARDAMONE

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns…

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.

Continue reading Fair Work Ombudsman v CARDAMONE

Details

AGLC: Fair Work Ombudsman v CARDAMONE [2015] FCCA 3238
Case: [2015] FCCA 3238
Decision Date: 8 December 2015

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Mr. Cardamone concerning alleged contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute centred on Mr. Cardamone's alleged failure to comply with a notice issued by the FWO under section 484 of the Act, which required him to provide documents and information relevant to an investigation into potential breaches of workplace laws. Mr. Cardamone did not comply with the notice, nor did he apply to the Fair Work Commission to have the notice set aside. The proceedings were heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether Mr. Cardamone had contravened section 484(1) of the Act by failing to comply with the FWO's notice. This required the Court to consider the scope and effect of a notice issued under section 484, and the circumstances under which a failure to comply would constitute a contravention. The Court also had to determine whether Mr. Cardamone had established any defence or excuse for his non-compliance.

Judge Riley found that Mr. Cardamone had indeed contravened section 484(1) of the Act. The Court reasoned that the notice issued by the FWO was valid and that Mr. Cardamone had failed to comply with its terms. The Court rejected any suggestion that Mr. Cardamone was unaware of the notice or that there were any other mitigating circumstances that would excuse his non-compliance. The Court applied the principle that a failure to comply with a lawful notice issued under the Act, without a valid excuse or an application to set aside the notice, constitutes a contravention.

Consequently, the Court ordered Mr. Cardamone to pay a pecuniary penalty of $1,000 for his contravention of section 484(1) of the Act.

Orders