Fair Work Ombudsman v EJ Group International Pty Ltd - [2017] FCCA 997

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v EJ GROUP INTERNATIONAL PTY LTD & ANOR

[2017] FCCA 997

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties.

Legislation:

Fair Work Act 2009, ss. 45, 529(2), 535(1), 536(1), 539(1), 545(1), 550, 557

Fair Work Regulations 2009, rr. 3.36, 3.44
Restaurant Industry Award 2010, cls. 13.1, 20.1, 33.2, 34.1

Cases cited:
Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

EJ GROUP INTERNATIONAL PTY LTD

Second Respondent:

MR IL KANG

File Number:

BRG 1008 of 2016

Judgment of:

Judge Jarrett

Hearing date:

12 May 2017

Date of Last Submission:

12 May 2017

Delivered at:

Brisbane

Delivered on:

16 May 2017

REPRESENTATION

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Solicitors for the Respondents:

So Dong Lawyers

ORDERS

BY CONSENT THE COURT DECLARES THAT:

The first respondent contravened:
(a)s.45 of the Fair Work Act 2009 (Cth) by failing to pay the minimum rate of pay prescribed by cl.20.1 of the Restaurant Industry Award 2010;
(b)s.45 of the Fair Work Act 2009 (Cth), by failing pay the minimum casual loading prescribed by cl.13.1 of the Restaurant Industry Award 2010;
(c)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the minimum Saturday penalty prescribed by cl.34.1 of the Restaurant Industry Award 2010;
(d)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the minimum Sunday penalty prescribed by cl.34.1 of the Restaurant Industry Award 2010;
(e)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the minimum overtime rates (Monday to Friday) prescribed by cl.33.2(a) of the Restaurant Industry Award 2010;
(f)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the minimum overtime rates (Saturday) prescribed by cl.33.2(b) of the Restaurant Industry Award 2010;
(g)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the minimum overtime rate (Sunday) prescribed by cl.33.2(c) of the Restaurant Industry Award 2010;
(h)subs.535(1) of the Fair Work Act 2009 (Cth), by failing to make and keep for seven years records as prescribed by reg.3.36(1) of the Fair Work Regulations;
(i)reg.3.44(1) of the Fair Work Regulations, by failing to ensure that the records it was required to keep were not false or misleading to its knowledge;
(j)reg.3.44(6) of the Fair Work Regulations, by making use of entries in employee records, knowing those records were false or misleading; and
(k)s.536(1) of the Fair Work Act 2009 (Cth), by failing to give pay slips within one working day of paying amounts to employees in relation to the performance of work.
The second respondent was, within the meaning of subs.550(2) of the Fair Work Act, involved in each of the contraventions of the First Respondent set out in paragraphs 1(a)to 1(g), 1(i)and 1(j) above.

THE COURT ORDERS THAT:

Pursuant to subs.546(1) of the Fair Work Act 2009 (Cth) the first respondent pay a penalty in the total amount of…

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.

Continue reading Fair Work Ombudsman v EJ Group International Pty Ltd

Details

AGLC: Fair Work Ombudsman v EJ Group International Pty Ltd [2017] FCCA 997
Case: [2017] FCCA 997
Decision Date: 16 May 2017

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against EJ Group International Pty Ltd (EJ Group) in the Federal Circuit and Family Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by EJ Group, specifically in relation to the underpayment of wages to its employees. The FWO sought declarations of contravention, pecuniary penalties, and orders for the repayment of outstanding wages.

The court was required to determine whether EJ Group had contravened provisions of the *Fair Work Act* by failing to pay its employees minimum award wages and entitlements, including overtime and leave loading. The proceedings also involved allegations of record-keeping and pay slip contraventions, as well as the issue of whether the contraventions were serious, which would attract higher penalties.

Judge Jarrett found that EJ Group had contravened multiple provisions of the *Fair Work Act*, including those relating to minimum wages, overtime, and leave entitlements. The court applied the principles of statutory interpretation to the relevant award and the *Fair Work Act*, finding that EJ Group had failed to meet its obligations. The court also considered the objective seriousness of the contraventions, taking into account factors such as the duration and extent of the underpayments, and the employer's conduct.

Consequently, EJ Group was ordered to pay pecuniary penalties totalling $10,500 for the contraventions. Furthermore, the court ordered EJ Group to rectify the underpayments by paying the affected employees the sum of $10,178.90, plus superannuation and interest.

Orders