Fair Work Ombudsman v Chia Tung Development Corp. Ltd - [2016] FCCA 3457

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v CHIA TUNG DEVELOPMENT CORP. LTD & ANOR

[2016] FCCA 3457

Catchwords:
INDUSTRIAL LAW – Multiple contraventions of Fair Work Act – imposition of pecuniary penalties.

Legislation:

Crimes Act 1914 (Cth), s.4AA.

Fair Work Act 2009, ss.12, 90, 539, 546, 550, 716, 717.

Federal Circuit Court Rules 2001, rr.13.03A, 16.05.

Cases cited:

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476; [2015] HCA 46
Fair Work Ombudsman v Absynthe Restaurant Pty Ltd [2015] FCCA 58
Fair Work Ombudsman v AIMG BQ Pty Ltd [2016] FCCA 1024
Fair Work Ombudsman v Bosen Pty Ltd [2011] VMC 81
Fair Work Ombudsman v Btu Hornsby Pty Ltd & Anor [2016] FCCA 1150
Fair Work Ombudsman v Go Yo Trading Pty Limited [2012] FMCA 865
Fair Work Ombudsman v Hair lndustrie Mt Druitt Pty Ltd [2015] FCCA 3426

Fair Work Ombudsman v Kentwood Industries Pty Ltd (No. 3) [2011] FCA 579
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151

Fair Work Ombudsman v Promoting U Pty Ltd [2012] FMCA 58
Fair Work Ombudsman v Quality Food World Pty Ltd [2016] FCCA 207

Fair Work Ombudsman v The Syndicate Group Pty Ltd [2015] FCCA2847

Kelly v Fitzpatrick [2007] FCA 1080
Maslen v Core Drilling Services Pty Ltd & Anor (No.2) [2015] FCCA 290
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

CHIA TUNG DEVELOPMENT CORP. LTD

Second Respondent:

MR MICHAEL CHEN-FA LIN

File Number:

SYG 562 of 2016

Judgment of:

Judge Altobelli

Hearing date:

2 December 2016

Date of Last Submission:

2 December 2016

Delivered at:

Wollongong

Delivered on:

2 December 2016

REPRESENTATION

Solicitors for the Applicant:

Fair Work Ombudsman

There was no appearance by or on behalf of the Respondents.

ORDERS

Leave be granted to the Applicant to rely on the affidavit of Kerry Patrick O’Brien affirmed on 2 December 2016.
Pursuant to subsection 546(1) of the Fair Work Act:
(a)the First Respondent, Chia Tung Development Corp., Ltd, pay a penalty of $24,300.00, for its contravention of subsection 716(5) of the FW Act; and
(b)the Second Respondent, Michael Chen-Fa Lin, pay a penalty of $4,860.00, for his involvement in the First Respondent’s contravention of subsection 716(5) of the FW Act.
Pursuant to section 546(3) of the FW Act that any pecuniary penalties ordered to be paid by the First and Second Respondents are paid into the Consolidated Revenue Fund of the Commonwealth within 28 days of the date of this order.
The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
Within 7 days, the Solicitor for…

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: [2016] FCCA 3457
Decision Date: 2 December 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Chia Tung Development Corp. Ltd (Chia Tung) in the Federal Circuit and Family Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by Chia Tung, specifically in relation to the underpayment of wages to an employee. The FWO sought penalties against Chia Tung for these alleged breaches.

The central legal issue before the Court was whether Chia Tung had contravened section 50 of the *Fair Work Act 2009* (Cth) by failing to pay an employee the minimum lawful wage, and whether this failure constituted a contravention of a modern award. The Court was required to determine the correct interpretation and application of the relevant award provisions to the employee's employment and the employer's obligations.

Judge Altobelli found that Chia Tung had contravened the *General Retail Industry Award 2010* by failing to pay the employee the minimum wage prescribed by the award for the work performed. The Court reasoned that the employer had a clear obligation to ensure that employees were paid at least the minimum rate stipulated in the award, and that this obligation had not been met. The Court applied the principles of statutory interpretation to the award provisions, concluding that the employer's actions amounted to a breach of its statutory and award obligations. The Court ordered Chia Tung to pay penalties for the contraventions.

Orders