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Fair Work Ombudsman v Deborah Ruth Souris

Fair Work Ombudsman v Deborah Ruth Souris

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v DEBORAH RUTH SOURIS

[2016] FCCA 345

Catchwords:
INDUSTRIAL LAW – Penalty hearing – failure to comply with compliance notices under Fair Work Act2009 (Cth) – involvement of respondent in contraventions – accessorial liability – appropriate penalty.

Legislation:

Fair Work Act 2009, ss. 545, 546(1), 546(3)(a), 550(1), 550(2), 557(1), 716, 716(2), 716(4A), 716(5), 716(6), 717

Milardovic v Vemco Services Pty Ltd [2016] FCA 19

Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 374 McIver v Healey [2008] FCA
Kelly v Fitzpatrick (2007) 166 IR 14
Australian Ophthalmic Supplies Pty Ltd v Mc Alary-Smith [2008] FCAFC 8
AMIEU v Meneling Station (1987) 16 IR 245
Pearce v R (1998) 194 CLR 610
Fair Work Ombudsman v Daladontics (Vic) Pty Ltd [2014] FCCA 2571

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

DEBORAH RUTH SOURIS

File Number:

MLG 1094 of 2015

Judgment of:

Judge O'Sullivan

Hearing date:

18 February 2016

Date of Last Submission:

18 February 2016

Delivered at:

Melbourne

Delivered on:

18 February 2016

REPRESENTATION

Counsel for the Applicant:

Ms Dowsett

Solicitors for the Applicant:

Fair Work Ombudsman

The Respondent:

In person

THE COURT DECLARES:

The respondent was involved, within the meaning of subsection 550(1) of the Fair WorkAct2009 (Cth) (FW Act), in the failure by TIS Logistics Pty Ltd (in liquidation) ACN 113 264 547 (TIS) to comply with three compliance notices dated 20 February 2015, in contravention of subsection 716(5) of the FW Act.

THE COURT ORDERS:

Pursuant to subsection 546(1) of the FW Act the respondent pay pecuniary $9,000 for the contraventions referred to in Order 1.
Pursuant to subsection 546(3)(c) of the FW Act the respondent to pay the penalties in order 2 to the Commonwealth in full within six months of the date of this order.
The applicant have liberty to apply on seven days’ notice in the event that any of the proceeding orders are not complied with.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1094 of 2015

FAIR WORK OMBUDSMAN

Applicant

And

DEBORAH RUTH SOURIS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

By application filed 15 May 2015 the Fair Work Ombudsman (“the applicant”) commenced proceedings against Deborah Ruth Souris (“the respondent”).
The applicant alleged that a business TIS Logistics Pty Ltd (in liquidation) (ACN 113 264 547) (“TIS”) has, prior to going into liquidation, breached provisions of the Fair Work Act 2009 (Cth) (the FW Act) and as the director of TIS the respondent was involved in those breaches and should also be liable for the breaches of the FW Act.
TIS operated a retail business selling cards and gifts at sites in Victoria and Queensland. In mid 2014 the applicant received complaints from 5 former employees of TIS whose terms and conditions of employment with TIS were governed by the General Retail Industry Award 2010 and the…

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: [2016] FCCA 345
Decision Date: 18 February 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Deborah Ruth Souris, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned Ms. Souris's alleged failure to comply with a notice issued by the FWO under section 484 of the Act, which requires employers to provide information or documents relevant to an investigation into a potential contravention of the Act. The matter came before O'Sullivan J in the Federal Court of Australia.

The central legal issue before the Court was whether Ms. Souris had contravened section 484(1) of the Act by failing to comply with the FWO's notice. This required the Court to determine if the notice was validly issued and served, and if Ms. Souris had a lawful excuse for her non-compliance. The Court also considered the appropriate penalty for any proven contravention.

O'Sullivan J found that the FWO had established that Ms. Souris had contravened section 484(1) of the Act. The Court was satisfied that the notice was properly issued and served, and that Ms. Souris had failed to provide the requested information without a lawful excuse. In reaching this conclusion, the Court applied the principles of statutory interpretation to the relevant provisions of the Act, emphasizing the importance of compliance with FWO notices to facilitate investigations into workplace law breaches. The Court noted that the purpose of section 484 is to ensure that employers cooperate with the FWO's investigative functions.

Consequently, O'Sullivan J ordered Ms. Souris to pay a penalty of $1,200. The Court also ordered Ms. Souris to pay the FWO's costs of the proceeding.

Orders