Fair Work Ombudsman v Devine Marine Group Pty Ltd

The Fair Work Ombudsman (FWO) brought proceedings against Devine Marine Group Pty Ltd (DMG) in the Federal Circuit Court, alleging contraventions of minimum wage rates and penalty rates under the Marine Industry (General) Award 2010. The primary dispute centred on whether DMG, under the control of its director Capt Devine, had deliberately underpaid employees by exploiting their vulnerability as foreign workers, thereby contravening the protections afforded by the Fair Work Act 2009 (Cth) and the Award. The legal issues revolved around the assessment of penalties for multiple contraventions of different provisions within the Award and whether the totality principle should apply to the penalty assessment. The court was also required to consider the lack of cooperation from DMG during the investigation and whether the vulnerability of foreign employees had been exploited.

The Court found that each contravention was a form of underpayment, but the minimum hourly rates and weekend penalty rates were separate parts of the safety net established by the FW Act and the Award. The court emphasised the importance of minimum wage rates as a base entitlement and the appropriateness of penalty rates for weekend work, as affirmed by the Full Bench of the Fair Work Commission. The Court concluded that DMG, at the instigation of Capt Devine, engaged in a deliberate strategy to obtain labour at a lower cost by bringing Fijian workers to Australia under the guise of a training program. The Court further found that Capt Devine had acknowledged that DMG could not afford to engage workers as employees due to regulatory burdens. The Court assessed the culpability of Capt Devine for these contraventions, taking into account the totality of the conduct. In light of the findings, the Court imposed a penalty of $4,000 for the contravention of clause 24.1(a) of the Award, and penalties of $2,000 each for the contraventions of clauses 40.7 and 40.8. The pecuniary penalties were ordered to be paid to the affected employees, Mr Alopisia Kouka and Mr Andrew James. The claim against Arthur Boucaut-Jones was dismissed, and the proceedings were otherwise dismissed with no order as to the costs of the proceedings.