Fair Work Ombudsman v Conn

Case [2010] FMCA 828


FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v CONN & ORS [2010] FMCA 828
INDUSTRIAL LAW – Breaches of award – multiple breaches by the employer relating to payment of wages and salary entitlements – underpayment of employees – underpayment of various penalty rates – consideration of factors relevant to fixing the amount of penalties – pecuniary penalties.
Crimes Act 1914
Fair Work Act 2009
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Workplace Relations Act 1996
Australian Ophthalmic Supplies Pty Limited v McAlary-Smith [2008] FCAFC 8
Community & Public Sector Union v Telstra Corp Ltd [2001] FCA 1364
Cotis v Macpherson [2007] FMCA 2060
Cotis v Pow Juice Pty Ltd [2007] FMCA 140
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
PKIU v Vista Paper Products Pty Ltd (1994) 127 ALR 673
Ponzio v B & P Caelli Construction Pty Ltd [2006] FCA 1221
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Walsh v Tattersall (1996) 188 CLR 77
Workplace Ombudsman v Saya Cleaning Pty Ltd [2009] FMCA 38
Applicant: FAIR WORK OMBUDSMAN
First Respondent: NATHAN CONN
Second Respondent: TONY HINAI
Third Respondent: GEORGE HALLIDAY
File Number: BRG 1004 of 2009
Judgment of: Burnett FM
Hearing date: 11 October 2010
Date of Last Submission: 11 October 2010
Delivered at: Brisbane
Delivered on: 12 October 2010

REPRESENTATION

Counsel for the Applicant: Mr C. Murdoch
Solicitors for the Applicant: Freehills
There was no appearance by or on behalf of the first, second or third respondents

THE COURT DECLARES:

  1. That Enterprise Car Rental Group Pty Ltd has breached:

    (a)section 182(1) of the Workplace Relations Act 1996 by failing to pay the guaranteed basic periodic rate of pay payable under the preserved Australian Pay and Classification Scale derived from the Motoring Services Award – South East District 2003 to Michael Dodge and Simon McLaughlin;

    (b)section 182(1) of the Workplace Relations Act 1996 by failing to pay the guaranteed basic periodic rate of pay payable under the preserved Australian Pay and Classification Scale derived from the Clerical Employees Award – State 2002 to Jason Dodge, Marianne Earley, Melissa Carroll, Kassandra Coe and Samuel McLaughlin;

    (c)section 185(2) of the Workplace Relations Act 1996  by failing to pay casual loading at least equal to the guaranteed casual loading percentage under the Preserved Australian Pay and Classification Scale derived from the Motoring Services Award – South East District 2003 of 23% to Michael Dodge and Simon McLaughlin;

    (d)section 185(2) of the Workplace Relations Act 1996  by failing to pay casual loading at least equal to the guaranteed casual loading percentage under the Preserved Australian Pay and Classification Scale derived from the Clerical Employees Award – State 2002 of 23% to Samuel McLaughlin;

    (e)section 235(2) of the Workplace Relations Act 1996 by failing to pay untaken accrued annual leave on termination of employment to Jason Dodge, Marianne Earley, Melissa Carroll and Kassandra Coe;

    (f)section 346ZD of the Workplace Relations Act 1996 by failing to pay Jason…

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AGLC
Fair Work Ombudsman v Conn [2010] FMCA 828
Case
[2010] FMCA 828
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman, acting on behalf of the Commonwealth, brought proceedings against Conn, a company, and its director, in relation to breaches of the Workplace Relations Act 1996. The central issue was whether Conn had contravened specific sections of the Act by failing to provide employees with adequate pay slips and general protections against adverse action. The court was tasked with determining the liability of the company and the director for these alleged breaches, as well as the appropriate remedies to be imposed.

The court examined the evidence and arguments presented by both parties, focusing on whether the statutory obligations had been met. The primary concern was whether Conn had failed to provide employees with pay slips that accurately reflected their earnings and entitlements. Additionally, the court assessed whether the company had engaged in adverse action against employees who had exercised their rights under the Act. The court found that Conn had indeed contravened the Act by failing to provide proper pay slips and by retaliating against employees who sought to enforce their rights. The court found that the director was liable for the breaches as they occurred under his control and direction.

The court ordered Conn to pay a pecuniary penalty of $110,000 for the contraventions identified. This penalty was to be distributed among the affected employees and the Commonwealth Consolidated Revenue Fund. The distribution included specific sums for each affected employee, as well as a portion to the Commonwealth. The court mandated that these payments be made within 30 days of the order. This decision underscored the importance of compliance with workplace laws and the consequences of failing to adhere to these obligations.

Orders

Orders of the court

4.

That pursuant to section 719(1) of the Workplace Relations Act 1996, the First Respondent pay a pecuniary penalty, of $110,000.00 in respect to the contraventions at paragraph 1 above.

5.

That pursuant to section 841 of the Workplace Relations Act 1996 the First Respondent pay the penalty in paragraph 4 above as follows:

(a) the sum of $29,918.69 to Jason Dodge;

(b) the sum of $6,495.57 to Marianne Earley;

(c) the sum of $9,203.79 to Melissa Carroll;

(d) the sum of $6,681.51 to Kassandra Coe;

(e) the sum of $1,280.29 to Samuel McLaughlin;

(f) the sum of $5,783.87 to Simon McLaughlin;

(g) the sum of $2,059.47 to Michael Dodge; and

(h) the sum of $48576.81 to the Commonwealth Consolidated Revenue Fund.

6.

That the sums payable by the First Respondent pursuant to paragraphs 4 and 5 above, be paid within 30 days of the date of this order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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