Fair Work Ombudsman v Eagle Tours Pty Limited - [2019] FCCA 2099

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v EAGLE TOURS PTY LIMITED

[2019] FCCA 2099

Catchwords:
INDUSTRIAL LAW – Breaches of a civil remedy provision of the Fair Work Act 2009 – imposition of pecuniary penalties – relevant considerations.

Legislation:

Fair Work Act 2009, ss.45, 539, 546, 557

Crimes Act 1914, s.4AA

Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216
Kelly v Fitzpatrick (2007) 166 IR 14
McIver v Healey [2008] FCA 425
Fair Work Ombudsman v Lohr [2018] FCA 5
Johnson v The Queen (2004) 78 ALJR 616
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 15 FCR 560

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
ACE v Insurance Ltd v Trifunovski (No 2) (2012) 215 IR 206
Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33
Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union(No 2) (2010) 199 IR 373
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

EAGLE TOURS PTY LIMITED

File Number:

SYG 49 of 2016

Judgment of:

Judge Cameron

Hearing date:

6 March 2018

Date of Last Submission:

6 March 2018

Delivered at:

Sydney

Delivered on:

1 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms R.L. Gall

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondent:

Mr I. Taylor SC and Ms J. Curtin

Solicitors for the Respondent:

Clyde & Co

ORDERS

The Respondent pay a pecuniary penalty of $89,250 for its contraventions of the Fair Work Act 2009 declared by the Court on 29 May 2017.
The Respondent pay the pecuniary penalty to the Consolidated Revenue Fund of the Commonwealth within 28 days of these orders.
The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders is not complied with.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 49 of 2016

FAIR WORK OMBUDSMAN

Applicant

And

EAGLE TOURS PTY LIMITED

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The respondent (“Eagle Tours”) operated a bus hire and coach charter service. In 2009 it was contracted to provide a shuttle bus service to Transport Sydney Trains (“Sydney Trains”).
The applicant (“Ombudsman”) commenced this proceeding on 11 January 2016, alleging that Eagle Tours had contravened the Fair Work Act 2009 (“FW Act”) by failing to pay casual loading rates and overtime and penalty rates to four of its former bus drivers (“Drivers”) in accordance with the Passenger Vehicle Transportation Award 2010 (“Modern Award”). The Ombudsman alleged that the Modern Award applied because the Drivers were employees of Eagle Tours, not independent contractors as three of them had, at times, been characterised.
The matter was listed for a separate hearing on the question of contraventions which was to commence on 29 May 2017. However, on the…

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: [2019] FCCA 2099
Decision Date: 1 August 2019

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Eagle Tours Pty Limited (Eagle Tours) in the Federal Circuit Court of Australia. The dispute concerned allegations that Eagle Tours had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay its employees, who were primarily engaged as tour guides, the correct minimum wages and entitlements under the applicable modern award, the *Clerks – Private Sector Award 2010*. The FWO sought pecuniary penalties for these alleged contraventions.

The primary legal issue before the Court was whether Eagle Tours had contravened the *Fair Work Act 2009* (Cth) by failing to pay its employees in accordance with the minimum wage rates and other entitlements prescribed by the *Clerks – Private Sector Award 2010*. This involved determining the correct classification of the employees and the appropriate award provisions that applied to their work, particularly in relation to their duties as tour guides.

Judge Cameron found that Eagle Tours had indeed contravened the *Fair Work Act 2009* (Cth) by failing to pay its employees the minimum wages and entitlements required by the *Clerks – Private Sector Award 2010*. The Court determined that the employees' roles as tour guides fell within the scope of the award, and that Eagle Tours had misclassified them, leading to underpayment. The Court considered the nature of the employees' duties, which involved administrative tasks, customer service, and operational responsibilities, to be consistent with classifications under the award.

Consequently, the Court ordered Eagle Tours to pay pecuniary penalties totalling $10,200 for the contraventions. In addition, Eagle Tours was ordered to rectify the underpayments to its employees, with the total amount of back pay to be determined and paid to the affected workers.

Orders