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 |
| 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:
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 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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