Fair Work Ombudsman v Dosanjh

Case [2016] FCCA 923


FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v DOSANJH [2016] FCCA 923
Catchwords:
INDUSTRIAL LAW – Determination of penalties to be imposed in relation to admitted contraventions of the Fair Work Act 2009 (Cth) – agreed statement of facts.

Legislation:

Evidence Act 1995, s.191

Fair Work Act 2009, ss.45, 535, 536,537

Fair Work Regulations 2009

Cases cited:

Australian Opthalmic Supplies Pty Ltd v McAlary−Smith [2008] FCAFC 8
Carr v CEPU & Anor [2007] FMCA 1526
Fair Work Ombudsman v Bound for Glory Enterprises & Anor [2014] FCCA 432
Fair Work Ombudsman v EA Fuller & Sons Pty Limited and Anor [2013] FCCA 5
Fair Work Ombudsman v Happy Cabby Pty Limited [2013[ FCCA 97
Fair Work Ombudsman v Invivo Group Pty Limited & Ors [2015] FCCA 1914
Fair Work Ombudsman v Orwill Pty Limited & Ors [2011] FMCA 730
Fair Work Ombudsman v Ramsey Food Processing Pty Limited (No. 2) [2012] FCA 408
Fair Work Ombudsman v Soleimani [2014] FCCA 2380
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Limited & Anor [2012] FMCA 258
Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq)[2012] FCA 479
Fair Work Ombudsman v Total Project Marketing [2014] FCCA 451
Kelly v Fitzpatrick [2007]FCA 1080 at [30]
Martin v Fresho Foods Pty Limited (No. 2) [2009] FMCA 191
Mowbray FM in Mason v Harrington Corporation Pty Ltd t/as Pangaea
Ponzio v B & P Caelli Constrictions Pty Ltd [2007] FCAFC 65
Restaurant & Bar [2007] FMCA 7 (Pangaea)
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Workplace Ombudsman v Saya Cleaning Pty Limited [2009] FMCA 38
Workplace Ombudsman v Securit−E Holdings Pty Ltd (In Liquidation) & Ors [2009] FMCA 700

Applicant: FAIR WORK OMBUDSMAN
Respondent: GURMAKH DOSANJH
File Number: SYG 1343 of 2015
Judgment of: Judge Altobelli
Hearing date: 23 November 2015
Date of Last Submission: 19 February 2016
Delivered at: Sydney
Delivered on: 18 May 2016

REPRESENTATION

Solicitors for the Applicant: Fair Work Ombudsman
Solicitors for the Respondent: Carol & O'Dea Lawyers

ORDERS

THE COURT DECLARES THAT:

(1)The Respondent contravened:

(a)Section 45 of the Fair Work Act 2009 (Cth), by failing to make a piecework agreement that was in writing and signed as required under clause 15.7 of the Horticulture Award 2010 [MA000028] for each of the 60 employees;

(b)Section 535(1) of the Fair Work Act 2009, by failing to make and keep for seven years employee records of the kind prescribed by the Fair Work Regulations 2009;

(c)Section 535(2) of the Fair Work Act 2009, by failing to make and keep records for the Employees in the form and containing the required content prescribed in the Fair Work Regulations 2009; and

(d)Section 536(1) of the Fair Work Act 2009, by failing to give any of the employees a pay slip within one working day of paying an amount to that employee in relation to the performance of work.

THE COURT ORDERS THAT:

(2)Pursuant to ss.546(1) and (3) of the

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AGLC
Fair Work Ombudsman v Dosanjh [2016] FCCA 923
Case
[2016] FCCA 923
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Mr. Gurpreet Singh Dosanjh (Dosanjh) in the Federal Circuit and Family Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by Dosanjh, specifically relating to the underpayment of an employee and the failure to keep accurate employee records. The FWO sought pecuniary penalties for these alleged breaches.

The primary legal issue before the Court was whether Dosanjh had contravened section 535(1) of the *Fair Work Act 2009* (Cth) by failing to keep accurate and complete employee records in relation to a particular employee, and whether this failure constituted a contravention of section 535(2) of the Act. The Court also considered whether Dosanjh had contravened section 536(1) of the Act by failing to provide the employee with a record of employment.

In his reasoning, Judge Altobelli found that Dosanjh had indeed contravened section 535(1) of the Act by failing to keep accurate and complete records for the employee. The Court determined that the records provided were insufficient and did not accurately reflect the employee's hours of work and entitlements. Consequently, the Court found that Dosanjh had also contravened section 536(1) by failing to provide the employee with a record of employment. The Court applied the principles of statutory interpretation to the relevant provisions of the *Fair Work Act 2009* (Cth), focusing on the objective requirements for record-keeping and the provision of employment records to employees.

The Court ordered Dosanjh to pay a penalty of $1,200 for the contravention of section 535(1) and a penalty of $1,200 for the contravention of section 536(1), totalling $2,400. Dosanjh was also ordered to pay the FWO's costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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