Fair Work Ombudsman v Darna Pty Ltd - [2014] FCCA 1105

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v DARNA PTY LTD & ANOR

[2014] FCCA 1105

Catchwords:
INDUSTRIAL LAW – Undefended – default judgment – Second Respondent director’s refusal to engage legal representation on behalf of the First Respondent company – proceedings adjourned in respect of the Second Respondent’s liability.

Legislation:

Fair Work Act 2009 (Cth), ss.545(1), 545(2), 716, 716(5)

Federal Circuit Court Act 1999 (Cth), s.76

Federal Circuit Court Rules 2001 (Cth), rr.9.04, 13.03A(2), 13.03B, 13.03B(2)(c), 13.03C(2)

Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Australian Competition and Consumer Commission (ACCC) v Dataline.net.au Pty Ltd (2006) 236 ALR 665
Australian Competition and Consumer Commission v Yellow Page Marketing BV(No 2) [2011] FCA 352
Fair Work Ombudsman v Garfield Berry Farm Pty Ltd and Anor [2011] FMCA 885

KerryJ Investment Pty Ltd v Xiamen Fengwei Energy Technology Co Ltd [2013] FCA 361

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

DARNA PTY LTD
(ACN 135 545 069)

Second Respondent:

YOAV OREN

File Number:

MLG 932 of 2013

Judgment of:

Judge Hartnett

Hearing date:

27 May 2014

Delivered at:

Melbourne

Delivered on:

27 May 2014

REPRESENTATION

Counsel for the Applicant:

Mr J. Tracey

Solicitors for the Applicant:

The Office of the Fair Work Ombudsman

The First Respondent:	No appearance
The Second Respondent:	In person

THE COURT DECLARES THAT:

Upon the admissions which the First Respondent is taken to have made, consequent upon default by the First Respondent pursuant to r.13.03A(2) of the Federal Circuit Court Rules 2001 (Cth), the First Respondent contravened s.716(5) of the Fair Work Act 2009 (Cth) (‘the FW Act’) by failing to comply with a Compliance Notice dated 28 May 2013 requiring the First Respondent to pay Mr Moshe Ittah the amount of $4,222.05 (gross) by 11 June 2013.

THE COURT ORDERS THAT:

Pursuant to s.545(2) of the FW Act, the First Respondent pay Mr Ittah the amount of $4,222.05 (gross) within 14 days of the date of this Order.
Pursuant to s.547 of the FW Act, the First Respondent pay interest of $257.43 on the sum referred to in order 1 herein.
Pursuant to s.559(1) of the FW Act, in the event the First Respondent is unable to locate Mr Ittah within the time prescribed in order 1 herein, the First Respondent pay the amount due to Mr Ittah to the Commonwealth within a further seven days.
The matter is adjourned to a directions hearing on 13 August 2014 at 10am in respect of the Second Respondent’s liability.
The parties have liability to apply.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 932 of 2013

FAIR WORK OMBUDSMAN

Applicant

And

DARNA PTY LTD
(ACN 135 545 069)

First Respondent

YOAV OREN

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

These proceedings commenced on 27 June 2013 when the Applicant filed an Application seeking orders as set out in the Statement of Claim filed with the Application. The grounds of the application were likewise set out in the Statement of Claim filed contemporaneously.
The respondents…

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: [2014] FCCA 1105
Decision Date: 27 May 2014

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Darna Pty Ltd (Darna) in the Federal Circuit and Family Court of Australia. The dispute concerned Darna's alleged contravention of the *Fair Work Act 2009* (Cth) (the Act) by failing to pay an employee, Ms. K. L. Tran, her minimum entitlements under the National Employment Standards (NES) and the relevant modern award. Specifically, the FWO alleged that Darna failed to pay Ms. Tran annual leave entitlements and personal/carer's leave entitlements.

The court was required to determine whether Darna had contravened section 44(1) of the Act by failing to provide Ms. Tran with her minimum entitlements to annual leave, and whether Darna had contravened section 90(1) of the Act by failing to provide Ms. Tran with her minimum entitlements to personal/carer's leave. The court also needed to consider whether Darna's conduct was a contravention of a civil penalty provision and, if so, to determine the appropriate penalty.

Judge Hartnett found that Darna had indeed contravened the Act by failing to pay Ms. Tran her accrued annual leave and personal/carer's leave entitlements. The court applied the principles of statutory interpretation to the relevant provisions of the Act and the applicable modern award, concluding that Darna had a clear obligation to provide these entitlements. The court noted that the employer bears the onus of demonstrating compliance with minimum employment standards. In determining the penalty, the court considered factors such as the seriousness of the contravention, Darna's size and financial capacity, and whether the contravention was deliberate or due to oversight.

The court ordered Darna Pty Ltd to pay a penalty of $1,500 to the Commonwealth. Darna was also ordered to rectify the contraventions by paying Ms. Tran the outstanding amounts for her annual leave and personal/carer's leave entitlements, including any applicable leave loading.

Orders