Fair Work Ombudsman v Crocmedia Pty Ltd - [2015] FCCA 140

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v CROCMEDIA PTY LTD

[2015] FCCA 140

Catchwords:
INDUSTRIAL LAW – Fair Work – awarding penalties under the Fair Work Act 2009 – consideration of factors relevant to the amount of penalty.

Legislation:
Fair Work Act 2009, ss.12, 323(1), 536(1).

Building and Construction Industry Improvement Act 2005

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 1014
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560; (2008) 246 ALR 35; (2008) 60 AILR 100-809
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Fair Work Ombudsman v Bedington [2012] FMCA 1133
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543; (2007) 162 IR 444; [2007] ALMD 6759; (2007) 59 AILR 100-669
Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847; (2005) 224 ALR 467; (2005) 147 IR 462

Stewart & Owens, Experience Or Exploitation?, Report for the Fair Work Ombudsman, January 2013.

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

CROCMEDIA PTY LTD (ACN 139 343 196)

File Number:

MLG 861 of 2013

Judgment of:

Judge Riethmuller

Hearing date:

5 March 2014

Date of Last Submission:

7 July 2014

Delivered at:

Melbourne

Delivered on:

29 January 2015

REPRESENTATION

Counsel for the Applicant:

Mr Tracey

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondent:

Mr Champion

Solicitors for the Respondent:

Macpherson + Kelley Lawyers

THE COURT DECLARES THAT:

The Respondent breached:
(a)Section 293 of Fair Work Act 2009:
(i)in that it failed to pay Mr [W] a rate at least equal to the national minimum wage in accordance with clause 4.3 of the NMWO 2010, the NMWO 2011 and the NMWO 2012, in respect of the period 19 June 2011 to 4 August 2012;
(ii)in that it failed to pay Mr [W] a casual loading at least equal to the applicable casual loading in accordance with clause 5.2 of the NMWO 2010, the NMWO 2011 and the NMWO 2012, in respect of the period 19 June 2011 to 4 August 2012;
(iii)in that it failed to pay Ms [S] a rate at least equal to the special national minimum wage 3 in accordance with clause 8.2 of the NMWO 2012, in respect of the period 11 August 2012 to 26 November 2012;
(iv)in that it failed to pay Ms [S] a casual loading at least equal to the applicable casual loading in accordance with clause 4.3 of the NMWO 2012, in respect of the period 27 November 2012 to 17 February 2013;
(v)in that it failed to pay Ms [S] a casual loading at least equal to the applicable casual loading in accordance with clause 5.2 of the NMWO 2012, in respect of the period in respect of the period 11 August 2012 to 17 February 2013;
(b)Section 323(1) of Fair Work Act 2009:
(i)in that it…

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: [2015] FCCA 140
Decision Date: 29 January 2015

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Crocmedia Pty Ltd in the Federal Circuit Court of Australia. The dispute concerned allegations that Crocmedia had contravened section 50 of the *Fair Work Act 2009* (Cth) by failing to provide an employee with a copy of their modern award and by failing to keep accurate employee records, as required by section 535 of the Act. The FWO sought pecuniary penalties for these alleged contraventions.

The primary legal issue before the Court was whether Crocmedia had contravened the *Fair Work Act 2009* (Cth) by failing to provide an employee with a copy of their applicable modern award and by failing to maintain accurate and complete employee records. A related issue was the appropriate penalty to be imposed if contraventions were found.

Judge Riethmuller found that Crocmedia had contravened section 50 of the Act by failing to provide the employee with a copy of their modern award. The Court reasoned that the employer has a positive obligation to provide a copy of the relevant modern award to each employee. Furthermore, the Court found that Crocmedia had contravened section 535 of the Act by failing to keep accurate and complete employee records, specifically regarding the employee's ordinary hours of work. The Court applied the principles of statutory interpretation to the relevant provisions of the *Fair Work Act 2009* (Cth) and considered the evidence presented by the FWO.

The Court ordered Crocmedia Pty Ltd to pay a pecuniary penalty of $1,200 for the contravention of section 50 and a further penalty of $1,200 for the contravention of section 535, totalling $2,400. Crocmedia was also ordered to pay the FWO's costs.

Orders