Fair Work Ombudsman v Devine Marine Group Pty Ltd

The Fair Work Ombudsman (FWO) commenced proceedings against Devine Marine Group Pty Ltd (DMG) alleging contravention of the Fair Work Act 2009 (Cth) and the Manufacturing and Associated Industries and Occupations Award 2010. The dispute involved whether participants in an unpaid training program were in reality employees to whom the Act and the Award applied. Additionally, the FWO alleged that DMG failed to comply with a Notice to Produce Records or Documents issued under s 712 of the Fair Work Act 2009 (Cth). The Court had to determine whether DMG contravened the terms of the Award, whether the employees were casuals within the definition in the Award, and the degree of knowledge required to establish individuals’ accessorial liability under s 550. Furthermore, the Court needed to assess whether there was a reasonable excuse for DMG’s failure to comply with the Notice to Produce Records or Documents.

The Court examined the relationship between DMG and the participants, concluding that the men were employees rather than trainees. The Court found that Captain Devine's description of the men as "invited guests" or "trainees" was not determinative of their actual relationship. The evidence showed that the men were engaged in work activities and were paid a cash living allowance, indicating an employment relationship. The Court also considered the notice issued by the FWO, determining that it was unduly wide and uncertain, thus providing a reasonable excuse for DMG's failure to comply. The Court concluded that DMG contravened the minimum hourly rate and weekend penalty rate provisions of the Award and that Captain Devine was involved as an accessory in those contraventions.

In light of the findings, the Court dismissed the FWO's application for accessorial liability of Captain Boucaut-Jones but declared that DMG contravened specific sections of the Award and that Captain Devine was an accessory to those contraventions. The Court ordered appropriate minutes to be brought in to reflect these conclusions and orders. The matter will proceed to determine the imposition of a penalty.