Catchwords: INDUSTRIAL LAW – Admitted contraventions of the Fair Work Act 2009 (Cth) – respondent’s involvement as a director in a failure by the company to pay shift loadings pursuant to the Modern Award – respondent’s involvement as a director in a failure by the company to pay overtime rates pursuant to the Modern Award – respondent’s involvement as a director in a failure by the company to pay public holiday rates pursuant to the Modern Award – respondent’s involvement as a director in a failure by the company to pay travel allowances pursuant to the Modern Award – respondent’s involvement as a director in a failure by the company to pay annual holidays loading pursuant to the Modern Award – respondent’s involvement as a director in a failure by the company to pay accrued annual leave on termination pursuant to s.90 of the Fair Work Act 2009 (Cth) – appropriate civil penalty to be paid by the respondent.
By way of Statement of Claim filed on 22 April 2013, the applicant sought various orders against the first respondent, Doble Express Transport Pty Ltd (“Doble Express”) and its director, Mr Graeme Doble, the second respondent (“the Respondent”), in the nature of declarations, compensation, and civil penalties pursuant to alleged contraventions of the FWA and the Workplace Relations Act 1996 (Cth) arising from a failure of Doble Express to pay certain named employees their full entitlements due under the Transport Modern Award.
On 26 June 2013, a Deed of Company Arrangement was executed in relation to Doble Express, and, on 11 February 2014, the applicant discontinued its proceeding against the first respondent.
Doble Express operated a transport / trucking service that provided an express freight service across regional New South Wales.
On 26 May 2014, the applicant filed in Court a Second Amended Statement of Agreed Facts in respect of employees Ms…
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
AGLC
Fair Work Ombudsman v Doble [2014] FCCA 1077
Case
[2014] FCCA 1077
Decision Date
CaseChat Overview and Summary
The Federal Court of Australia, presided over by Judge Emmett, considered the matter of the Fair Work Ombudsman against Mr Doble. The dispute concerned Mr Doble's alleged contraventions of the *Fair Work Act 2009* (Cth) as a director of a company that failed to pay its employees various entitlements, including shift loadings, overtime rates, public holiday rates, travel allowances, annual holiday loading, and accrued annual leave upon termination. The primary issue before the court was the appropriate civil penalty to be imposed on Mr Doble for these admitted contraventions.
The court was required to determine the quantum of the civil penalty that should be ordered against Mr Doble, taking into account the nature and extent of the contraventions and the principles governing the imposition of penalties under the *Fair Work Act 2009* (Cth). This involved assessing the seriousness of the breaches, the respondent's level of responsibility, and the need for deterrence.
In reaching its decision, the court applied established principles for determining civil penalties in workplace relations matters. Judge Emmett considered the need to reflect the seriousness of the contraventions, the importance of deterring future misconduct by both the individual and other employers, and the need to ensure compliance with industrial instruments. The court also had regard to the respondent's admissions and the fact that the contraventions were failures to pay entitlements mandated by a modern award and the Act. The court noted that the purpose of civil penalties is not punitive but rather to achieve compliance with the law.