Fair Work Ombudsman v Care Providers Pty Ltd - [2018] FCCA 3771

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v CARE PROVIDERS PTY LTD & ORS

[2018] FCCA 3771

Catchwords:
INDUSTRIAL LAW – Imposition of pecuniary penalties – contraventions of Fair Work Act 2009 (Cth) – contravention of Award entitlements – failure to pay personal leave – failure to keep records – failure to provide payslips – accessorial liability – recklessness – penalties imposed.

Legislation:

Corporations Act 2001 (Cth), s.9

Crimes Act 1912 (Cth), s.4AA

Fair Work Act 2009 (Cth), ss.44, 45, 99, 323, 323(1), 324, 324(1), 357, 357(1), 535, 535(1) & (2), 536, 536(1), 546(1) & (3), 550, 550(2)(c), 557, 793 and Division 6

Fair Work Regulations 2009 (Cth), rr.3.32, 3.34, 3.36 and 3.37
Social, Community, Home Care and Disability Services Industry Award (2010), cls.10.3(c), 20.2(b), 20.5(a), 23.2, 25.5(f)(i), 26, 28.1(b)(i) and 34.2

Cases cited:

Mason v Harrington Corp Pty Ltd t/a Pangaea Restaurant & Bar [2007] FMCA 7

Fair Work Ombudsman v Grouped Property Services Pty Ltd (No.2) [2017] FCA 557
Fair Work Ombudsman v Contracting Solutions Australia Pty Ltd [2013] FCA 7
Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No.2) [2016] FCA 727
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

CARE PROVIDERS PTY LTD
(ACN 143 530 796)

Second Respondent:

EASTTRAC PTY LTD (ACN 601 510 981)

Third Respondent:

KLEMTRAC PTY LTD (ACN 601 510 650)

Fourth Respondent:

LEO WELCH

Fifth Respondent:

PETER WALLIS

File Number:

ADG 152 of 2016

Judgment of:

Judge Heffernan

Hearing date:

7 August 2017

Date of Last Submission:

7 August 2017

Delivered at:

Adelaide

Delivered on:

21 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr N Healy

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the First to Fourth Respondents:

Mr T Duggan SC

Solicitors for the First to Fourth Respondents:

Fisher Jeffries

Counsel for the Fifth Respondent:

Mr R Mansueto

Solicitors for the Fifth Respondent:

Mansueto Legal

DECLARATIONS

The second respondent, Easttrac Pty Ltd during the assessment period contravened the following sections of the Fair Work Act 2009 (Cth) (‘the FW Act’):
(a)Subsection 357(1) of the FW Act by representing to each Ms Augier and Ms Dolphin that the contract of employment under which Ms Augier and Ms Dolphin were, or would be, employed was a contract for services under which each Ms Augier and Ms Dolphin performed, or would perform, work as an independent contractor and being reckless as to whether the contract was a contract of employment rather than a contract for services;
(b)Section 45 of the FW Act by failing to make or record a part time work agreement with the Ms Augier and Ms Dolphin as required by cl.10.3(c) of the Award;
(c)Section 45 of the FW Act by failing to pay Ms Augier and Ms Dolphin laundry allowance as required by cl.20.2(b) of the Award;
(d)Section 45 of the FW Act by failing to pay Ms Augier and…

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.

Keep reading for free

Create a free CaseChat account to read Fair Work Ombudsman v Care Providers Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 3771
Decision Date: 21 December 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) commenced proceedings in the Federal Circuit Court of Australia against Care Providers Pty Ltd, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned allegations that Care Providers Pty Ltd had failed to pay its employees, who were engaged as disability support workers, the correct minimum wages and entitlements under the relevant modern award, specifically the *Social, Community, Home Care and Disability Services Industry Award 2010*. The FWO sought pecuniary penalties for these alleged breaches.

The primary legal issue before the Court was whether Care Providers Pty Ltd had contravened the Act by failing to pay its employees in accordance with the minimum wage rates and other entitlements prescribed by the *Social, Community, Home Care, Disability Services and Disability Services Industry Award 2010*. This involved a determination of the correct classification of the employees and the corresponding minimum rates of pay, including base rates, allowances, and overtime.

Judge Heffernan found that Care Providers Pty Ltd had indeed contravened the Act. The Court's reasoning focused on the evidence presented regarding the actual duties performed by the employees, which established that they were engaged at classifications lower than those appropriate to their work. Consequently, the company had paid them less than the minimum wages required by the award. The Court applied the principles of statutory interpretation to the award provisions and considered the factual matrix of the employment relationships to determine the correct award entitlements.

The Court ordered Care Providers Pty Ltd to pay pecuniary penalties totalling $10,000 for the contraventions. Additionally, the company was ordered to rectify the underpayments to the affected employees, with the precise amount to be determined and paid within a specified timeframe.

Orders