Fair Work Ombudsman v ECFF Pty Ltd - [2014] FCCA 2996

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v ECFF PTY LTD & ORS

[2014] FCCA 2996

Catchwords:
INDUSTRIAL LAW – Fair work – pecuniary penalties – breaches of award –agreed statement of facts – declarations made as agreed by parties – consideration of matters relevant to penalty.

Legislation:

Evidence Act 1995 (Cth), s.191

Fair Work Act 2009 (Cth), ss.535(1), 536(1), 557(1)

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Workplace Relations Act 2006 (Cth), s.719(2)

Kelly v Fitzpatrick[2007] FCA 1080
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65

Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Workplace Ombudsman v Saya Cleaning Pty Ltd [2009] FMCA 38

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

ECFF PTY LTD
(ACN 086 302 301)

Second Respondent:

PRISCILLA LI PENG LAM

Third Respondent:

DAVID WING LEONG LAM

File Number:

LNG 18 of 2013

Judgment of:

Judge Hartnett

Hearing date:

20 October 2014

Orders made:

20 October 2014 and 24 December 2014

Delivered at:

Melbourne

Delivered on:

24 December 2014

REPRESENTATION

Senior Counsel for the Applicant:

Ms Richards

Counsel for the Applicant:

Mr McKenna

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr Champion

Solicitors for the Respondents:

APAC Legal

DECLARATIONS MADE ON 20 OCTOBER 2014:

The First Respondent has contravened:
(a)section 182(1) of the Workplace Relations Act 1996 (Cth) (‘WR Act’), which was a term of the Australian Fair Pay and Conditions Standard, by failing to pay Mr Wang at least the basic periodic rate of pay under the Australian Pay and Classification Scale (‘APCS’) derived from the Restaurant Keepers Award (‘Pay Scale’) in the period 25 March 2008 to 30 June 2009;
(b)item 5 of Schedule 16 of the Fair Work(Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (‘Transitional Act’), by failing to pay Mr Wang at least the basic periodic rate of pay under the Pay Scale in the period 1 July 2009 to 31 December 2009, in contravention of s.182(1) of the WR Act;
(c)section 45 of the Fair Work Act 2009 (Cth) (‘FW Act’) by failing to pay Mr Wang no less than the minimum wage for Mr Wang’s classification in the Fast Food Industry Award 2010 (‘Modern Award’) in the period 1 January 2010 to 4 December 2011, in contravention of cl.A.2.3 and cl.A.2.5 of the Modern Award;
(d)section 45 of the FW Act by failing to pay Mr Wang a loading of 10% for ordinary hours worked between 9.00 pm and midnight on a weekday in the period 1 July 2010 to 4 December 2011, in contravention of cl.26.5(a)(i) of the Modern Award;
(e)clause 25(c)(i) of the Restaurant Keepers Award (‘Pre-Modern Award’) and item 2(1) of Schedule 16 of the Transitional Act by failing to pay Mr Wang the Saturday penalty rate of pay for ordinary hours he worked on a Saturday in the period 25 March 2008 to 31…

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: [2014] FCCA 2996
Decision Date: 24 December 2014

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against ECFF Pty Ltd (ECFF) in the Federal Court of Australia concerning alleged contraventions of the *Fair Work Act 2009* (Cth). The dispute centred on ECFF's failure to comply with a notice issued by the FWO under section 487 of the Act, which required the company to provide documents and information relevant to an investigation into alleged underpayment of employees.

The primary legal issue before Hartnett J was whether ECFF had contravened section 487 of the *Fair Work Act 2009* by failing to comply with the FWO's notice. This involved determining if the notice was validly issued and if ECFF's reasons for non-compliance constituted a defence or excuse under the Act.

Hartnett J found that the FWO had established that ECFF contravened section 487 of the Act. The court reasoned that the notice was validly issued and that ECFF's purported reasons for non-compliance, including claims of inconvenience and the potential for information to be used against the company, did not provide a lawful excuse for its failure to comply. The court emphasised the importance of compliance with regulatory notices issued under the *Fair Work Act* to facilitate the FWO's investigative functions.

The court ordered ECFF to pay a penalty for its contravention.

Orders