Fair Work Ombudsman v Dawe - [2013] FMCA 191

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v NICOLE PATRICE DAWE

[2013] FMCA 191

INDUSTRIAL LAW – Penalty – whether a penalty should be imposed pursuant to s728 of the Workplace Relations Act 1996 (Cth) and s550 of the Fair Work Act 2009 (Cth) - whether any of the contraventions have common elements and should be grouped together – consideration of appropriate penalty – penalty imposed.

Workplace Relations Act 1996 (Cth), ss.185, 235, 728
Federal Magistrates Court Rules 2001, rr.13.03A, 13.03B, 13.03C
Fair Work Act 2009 (Cth), ss.90.535, 536, 539, 550, 712
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), sch.16

Fair Work Ombudsman v Dawe [2013] FMCA 94;
Mayberry v Kijani Investments Pty Ltd as trustee for The Dawe Investments Trust Subway Wallsend trading as Subway [2011] FCA 1238;
Lynch v Buckley Sawmills Pty Ltd [1984] FCA 306; 3 FCR 503;
Deputy Commissioner of Taxation v Kijani Investments Pty Ltd – NSD35/2012;
Gibbs v Mayor, Councillors and Citizens of City of Altona (1992);
McIver v Healey [2008] FCA 425;
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8;
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7;
Kelly v Fitzpatrick (2007) 166 IR 14;
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550;

FWO v Blacklight Investments Pty Ltd & Anor (No.3) [2012] FMCA 130;
CEPU v QR Ltd (No 2.) [2010] FCA 652;
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543;
Yardley v Betts (1979) 22 SASR 108;
R v Thompson (1975) 11 SASR 217;
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170;
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36;
Mornington Inn Pty Ltd v Jordon 247 ALR 714;
McDonald v R (1994) 48 FCR 555;

Attorney General (SA) v Tichy (1982) SASR 84

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

NICOLE PATRICE DAWE

File Number:

SYG 654 of 2012

Judgment of:

Emmett FM

Hearing date:

14 March 2013

Date of Last Submission:

14 March 2013

Delivered at:

Sydney

Delivered on:

21 March 2013

REPRESENTATION

Solicitors for the Applicant:

A. Kovalsky (Fair Work Ombudsman)

Solicitors for the Respondent:

C. Cody (Mason Sier Turnbull)

ORDERS

Pursuant to sub-section 719(1) of the Workplace Relations Act 1996 (Cth) (WR Act) a penalty of $5,280 be imposed on the respondent for her involvement in contraventions of the following provisions relating to base rates of pay:
(a)sub-section 182(1) of the WR Act and item 5 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act);
(b)clause 8(a) of the “Kijani Investments Pty Ltd ATF The Dawe Investments Trust Employee Collective Agreement” (Kijani ECA);
(c)clause 16 of the Australian Workplace Agreement lodged by Kijani Investments Pty Ltd (Kijani Investments) with the Employment Advocate on 2 February…

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: [2013] FMCA 191
Decision Date

CaseChat Overview and Summary

This case involves proceedings brought by the Fair Work Ombudsman against Nicole Patrice Dawe in the Federal Magistrates Court. The proceedings relate to contraventions of minimum wage and other employment standards provisions of the Workplace Relations Act 1996 and the Fair Work Act 2009. The Fair Work Ombudsman alleged that Ms Dawe, as a director of Kijani Investments Pty Ltd, was responsible for the underpayment of employees and other contraventions. The Court previously found that Ms Dawe had accessorial liability for the contraventions committed by Kijani Investments. The Fair Work Ombudsman now seeks penalties against Ms Dawe for her involvement in the contraventions. The Court considered the relevant principles and factors in determining an appropriate penalty and imposed a penalty of $56,760 on Ms Dawe. The penalty was apportioned between compensating the employees and paying the remainder to the Commonwealth. The Court also ordered that the payments be made within 28 days.

Orders