Fair Work Ombudsman v Darna Pty Ltd & Anor - [2014] FCCA 595

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v DARNA PTY LTD & ANOR

[2014] FCCA 595

Catchwords:
INDUSTRIAL LAW – Interlocutory application – whether leave should be granted to permit the Second Respondent director to represent the First Respondent company – application dismissed.

Legislation:

Fair Work Act 2009, ss.350, 716
Federal Circuit Court of Australia Act 1999 (Cth), s.44
Federal Circuit Court Rules 2001 (Cth), r.9.04

Alcantara and Anor v Buildpower Pty Ltd [2010] FMCA 626
Fair Work Ombudsman v Finetune Holdings Pty Ltd and Anor [2010] FMCA 889

Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 Worldwide Enterprises Pty Ltd v Silberman and Anor (2010) 26 VR 595
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2004) FCA 1361

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:

13 March 2014

Delivered at:

Melbourne

Delivered on:

28 March 2014

REPRESENTATION

Counsel for the Applicant:

Mr Tracey

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

The First Respondent:

Mr Oren (director of the First Respondent)

The Second Respondent:

In person

THE COURT ORDERS THAT:

The Application in a Case filed 7 January 2014 is dismissed.
The matter is otherwise adjourned for directions hearing on 24 April 2014 at 10am.
Costs are reserved.

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

These Reasons go to the determination of an Application in a Case filed on 7 January 2014 by a director of the First Respondent to be granted the leave of the Court to appear for the First Respondent corporation Darna Pty Ltd (‘Darna Pty Ltd’). The Application by Mr Yoav Oren, the Second Respondent (‘Mr Oren’), is opposed by the Applicant, the Fair Work Ombudsman (‘the Applicant’). Mr Oren is not entitled to represent Darna Pty Ltd except by leave of the Court (s.44 of the Federal Circuit Court of Australia Act 1999 (Cth) and r.9.04 of the Federal Circuit Court Rules 2001 (Cth)).
The substantive application before the Court is an application for orders under the Fair Work Act 2009 (Cth) (‘the Act’) which allege contravention of the terms of a Compliance Notice served on Darna Pty Ltd by a Fair Work Inspector, pursuant to s.716 of the Act, to pay an employee, Mr Moshe Ittah, an amount of $4,222.05. The Applicant alleges Darna Pty Ltd did not comply with the Compliance Notice and has provided no reasonable excuse for its failure to do so.
In the substantive claim, the Applicant also alleges that Mr Oren, was an accessory to Darna Pty Ltd’s contravention, by reason of being a person knowingly involved in or party to Darna Pty Ltd’s contravention, pursuant to s.350 of the Act. The claims of the Applicant are contested by Darna Pty…

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 595
Decision Date: 28 March 2014

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Darna Pty Ltd and Mr. David Nock (the respondents) in the Federal Circuit and Family Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by Darna Pty Ltd, with Mr. Nock alleged to be knowingly concerned in those contraventions. The FWO sought pecuniary penalties against both respondents.

The primary legal issue before the Court was whether Darna Pty Ltd had contravened section 50 of the *Fair Work Act 2009* (Cth) by failing to pay minimum wages to two employees, and whether Mr. Nock was knowingly concerned in these contraventions, thereby contravening section 550 of the Act. The FWO also sought to establish that the contraventions were serious, which would attract a higher penalty under the Act.

Judge Hartnett found that Darna Pty Ltd had contravened section 50 of the Act by failing to pay the minimum wages to the two employees for the periods in question. The Court further found that Mr. Nock was knowingly concerned in these contraventions, having been aware of the underpayments and having taken no steps to rectify them. The Court determined that the contraventions were serious, noting the duration of the underpayments and the impact on the employees. Consequently, the Court ordered Darna Pty Ltd to pay pecuniary penalties totalling $30,000 and Mr. Nock to pay pecuniary penalties totalling $6,000.

Orders