Fair Work Ombudsman v Eastern Colour Pty Ltd

[2016] FCAFC 187

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Eastern Colour Pty Ltd [2016] FCAFC 187

Appeal from:

Fair Work Ombudsman v Eastern Colour Pty Ltd (No 3)
[2016] FCA 186

File number:

QUD 218 of 2016

Judges:

JESSUP, BARKER AND WIGNEY JJ

Date of judgment:

22 December 2016

Catchwords:

PRACTICE AND PROCEDURE – Finding that ostensible contractual arrangements were “shams” – Whether open on pleadings and the way parties conducted the case – Recitation of evidence given by witnesses – Whether conflicts in evidence considered and resolved – Retrial

Legislation:

Workplace Relations Act 1996 (Cth) ss 719, 728

Federal Court of Australia Act 1976 (Cth) s 28

Cases cited:

Actavis Pty Ltd v Orion Corporation [2016] FCAFC 121

Damevski v Giudice (2003) 133 FCR 438

Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803

Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174

Miles v Bull [1969] 1 QB 258

Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449

Date of hearing:

4 August 2016

Registry:

Queensland

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

103

Counsel for the Appellant:

Ms K Nomchong SC with Ms A Rose

Solicitor for the Appellant:

Fair Work Ombudsman

Counsel for the Respondents:

Mr W Friend QC with Mr C Massy

Solicitor for the Respondents:

Hall Payne Lawyers

ORDERS

QUD 218 of 2016

BETWEEN:

FAIR WORK OMBUDSMAN

Appellant

AND:

EASTERN COLOUR PTY LTD (ACN 001 852 071)

First Respondent

SB EMPLOYMENTS PTY LTD (ACN 117 006 596)

Second Respondent

NB EMPLOYMENTS PTY LTD (ACN 117 059 319)

Third Respondent

(and another named in the Schedule)

JUDGES:	JESSUP, BARKER AND WIGNEY JJ
DATE OF ORDER:	22 DECEMBER 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The cross-appeal be allowed.

3.The orders made by the primary Judge on 3 March 2016 be set aside.

4.There be a new trial of the appellant’s claims in the proceeding.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal, and a cross-appeal, against orders made by a single Judge of the court on 3 March 2016 in a proceeding brought by the Fair Work Ombudsman (“the Ombudsman”) against Eastern Colour Pty Ltd (“Eastern Colour”), SB Employments Pty Ltd (“SB”), NB Employments Pty Ltd (“NB”) and Louisa Baronio.  In those orders, the primary Judge imposed penalties upon Eastern Colour, SB, NB and Mrs Baronio in respect of their contraventions of certain provisions of the Workplace Relations Act 1996 (Cth) (“the WR Act”): a single joint penalty of $50,000 upon the three companies and a penalty of $10,000 upon Mrs Baronio. The contraventions related to Eastern Colour’s failure to pay overtime to three workers, and public holiday penalties to four workers, who, according to her Honour’s findings, were employed by it. SB, NB and Mrs Baronio were held to be liable as accessories under s 728…