Fair Work Ombudsman v Deja Vu Elite Security Pty Ltd - [2018] FCCA 1402

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v DEJA VU ELITE SECURITY PTY LTD & ANOR

[2020] FCCA 1402

Catchwords:
INDUSTRIAL LAW – Alleged contraventions of Fair Work Act 2009 and Fair Work Regulations 2009 – some contraventions admitted – some alleged contraventions disputed – hearing on liability in respect of disputed contraventions – contraventions found proven.

Legislation:
Corporations Act 2001
Evidence Act 1995, s.140
Fair Work Act 2009, ss.12, 14(1)(a), 45, 535, 536(2), 539, 545(1), 550, 551, 687, 701, 712(3), 712(4), 793
Judiciary Act 1903, ss.55ZG(2), 55ZG(3)
Fair Work Regulations 2009, regs.3.31, 3.32, 3.33, 3.34, 3.44, 4.01A
General Retail Industry Award 2010, cls.12.2, 13.2, 17, 18.2, 20.2(b)(ii), 29.4(a), 29.4(b), 29.4(c), 29.4(d), B.1.1

Cases cited:

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; (2012) 286 ALR 501; (2012) 86 ALJR 522; (2012) 88 ACSR 246; [2012] HCA 17
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34
Morley v Australian Securities and Investments Commission (2010) 274 ALR 205; (2010) 247 FLR 140; (20120) 81 ACSR 285; [2010] NSWCA 331

Applicant:

FAIR WORK OMBUDSMAN

First respondent:

DEJA VU ELITE SECURITY PTY LTD
(ACN 131 423 651)

Second respondent:

SAID HADDAD

File number:

MLG 179 of 2017

Judgment of:

Judge Riley

Hearing date:

22 February 2018

Date of last submission:

23 March 2018

Delivered at:

Melbourne

Delivered on:

31 May 2018

REPRESENTATION

Counsel for the applicant:

Cathy Dowsett

Solicitors for the applicant:

Fair Work Ombudsman

Counsel for the respondents:

John Ribbands

Solicitors for the respondents:

P. W. Sotir & Co

THE COURT DECLARES THAT, having regard to the admissions made by the respondents in the statement of agreed facts filed in this proceeding:

The first respondent contravened:
(a)s.45 of the Fair Work Act 2009 (“the Act”), by contravening:
(i)clause 17;
(ii)    clause 18.2;
(iii)    clause 13.2;
(iv)    clause 29.4(a);
(v)    clause 29.4(b);
(vi)    clause 29.4(c);
(vii)    clause 29.4(d);
(viii) clause 20.2(b)(ii); and
(ix)    clause 12.2;
of the General Retail Industry Award 2010 (“the Award”); and
(b)s.536(2) of the Act, by giving pay slips to Grant Ferguson, Jessica Clark-Wingrave, Narelle Richards and Angelica Benitez (“the employees”) that did not accurately state the periods to which the pay slips related.
The second respondent was involved in each of the contraventions committed by the first respondent identified in declaration 1.

THE COURT DECLARES THAT:

The first respondent contravened:
(a)reg.3.44(1) of the Fair Work Regulations 2009 (“the Regulations”), by failing to ensure that records required to be kept in relation to the employees were not false or misleading;
(b)reg.3.44(4) of the Regulations, by altering records relating to the employees, other than as permitted by the Act or the Regulations;
(c)reg.3.44(6) of the Regulations, by making use of records by producing them to the applicant, knowing that those records were false or misleading; and
(d)s.712(3) of the Act, by failing to comply with a notice to produce.
The second…

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: [2018] FCCA 1402
Decision Date: 31 May 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Deja Vu Elite Security Pty Ltd (Deja Vu) in the Federal Circuit and Family Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by Deja Vu, specifically in relation to the underpayment of wages to its employees. The FWO sought declarations, pecuniary penalties, and orders for the recovery of outstanding wages.

The central legal issues before the Court were whether Deja Vu had contravened the *Fair Work Act 2009* (Cth) by failing to pay its employees the minimum wages and entitlements prescribed by the relevant award, and whether the company had breached the express terms of an Enterprise Agreement. The Court was also required to determine the appropriate penalty for any proven contraventions and the extent of any underpayments that needed to be rectified.

Judge Riley found that Deja Vu had contravened the *Fair Work Act 2009* (Cth) by failing to pay minimum wages and entitlements under the relevant award and by breaching the terms of an Enterprise Agreement. The Court determined that the company had engaged in deliberate and systematic underpayment of its employees over an extended period. In reaching this decision, the Court applied principles of statutory interpretation to the *Fair Work Act 2009* (Cth) and the Enterprise Agreement, and considered evidence of the company's payroll practices and employee work records. The Court emphasised the importance of compliance with minimum employment standards and the need for deterrence against such contraventions.

The Court ordered Deja Vu to pay pecuniary penalties totalling $102,300 for the contraventions. Additionally, Deja Vu was ordered to rectify the underpayments to its employees, which amounted to $106,900.

Orders