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Fair Work Ombudsman v Ever Australia Pty Ltd

Fair Work Ombudsman v Ever Australia Pty Ltd

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Case Copied 9 October 2015 62 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v EVER AUSTRALIA PTY LTD & ANOR

[2015] FCCA 1999

Catchwords:
INDUSTRIAL LAW – Determination of penalty – statement of agreed facts – admitted contraventions of ss.45 and 536(1) of the Fair Work Act 2009 (Cth) by first respondent – second respondent’s involvement in the first respondent’s contraventions pursuant to s.550 of the Fair Work Act 2009 (Cth) – pecuniary penalties imposed on first and second respondent.

Legislation:
Fair Work Act 2009 (Cth), ss.45, 536, 539, 550, 557

Cases cited:
Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216
McIver v Healey [2008] FCA 425
Blandy v Coverdale NT Pty Ltd ACN 102 611 423 [2008] FCA 1533
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Kelly v Fitzpatrick (2007) 166 IR 14
Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241
Workplace Ombudsman v Securit-E Holdings Pty Ltd (In Liquidation) & Ors [2009] FMCA 700
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Fair Work Ombudsman v Rocky Holdings Pty Ltd [2013] FCCA 1549
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Fair Work Ombudsman v Australia China Trading Investment Consultancy Group Pty Ltd and Anor [2014] FCCA 407
Hamilton v Whitehead (1988) 166 CLR 121
Fair Work Ombudsman v Jooine (Investment) Pty Ltd [2013] FCCA 2144
Workplace Ombudsman v Saya Cleaning Pty ltd and Anor [2009] FMCA 38
Hanssen Pty Limited v Jones (2009) 179 IR 57
Fair Work Ombudsman v Bosen Pty Ltdand Others (Industrial) [2011] VMC 81
David Armstrong v VK Holdings Pty Limited - (Unreported, 28 November 2007) Chief Industrial Magistrate Hart, Chief Industrial Magistrates Court Sydney
Australian Workers Union v Johnson Matthey (Aust) Ltd [2000] FCA 728
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33
ACCC v Leahy Petroleum Pty Ltd (No.2) (2005) 215 ALR 281
FWO v Promoting U Pty Ltd [2012] FMCA 58
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Yardley v Betts (1979) 22 SASR 108
R v Thompson (1975) 11 SASR 217
Yoga Tandoori House Pty Limited [2008] FMCA 288
R v Hunter (1984) 36 SARC 101
Fair Work Ombudsman v Ramsay Food Processing Pty Ltd (No.2) [2012] FCA 408
Australian Prudential Regulation Authority v Holloway [2000] FCA 1245
Carr v CEPU & Anor [2007] FMCA 1526
McDonald v The Queen [1994] FCA 956
Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd & Ors (1997) 145 ALR 36

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

EVER AUSTRALIA PTY LTD

(ACN 134 213 817)

Second Respondent:

YUE HUA LIU

File Number:

SYG 3447 of 2014

Judgment of:

Judge Emmett

Directions date:

17 March 2015

Date of Last Submission:

19 June 2015

Delivered at:

Sydney

Delivered…

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: [2015] FCCA 1999
Decision Date: 9 October 2015

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Ever Australia Pty Ltd (Ever Australia) in the Federal Court of Australia. The dispute concerned allegations that Ever Australia had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to make superannuation contributions for certain employees.

The primary legal issue before the Court was whether Ever Australia had contravened section 52 of the *Superannuation Guarantee (Administration) Act 1992* (Cth) by failing to pay the minimum superannuation contributions required for its employees. This involved determining the correct interpretation of the relevant provisions of the *Fair Work Act* and the *Superannuation Guarantee (Administration) Act* in relation to an employer's obligation to make superannuation contributions.

Judge Emmett found that Ever Australia had indeed contravened section 52 of the *Superannuation Guarantee (Administration) Act 1992* (Cth). The Court reasoned that the company had failed to meet its statutory obligation to pay the minimum superannuation contributions for its employees within the prescribed timeframes. The Court applied the principles of statutory interpretation to ascertain the scope of the employer's obligations under the relevant legislation. The Court ordered Ever Australia to pay the outstanding superannuation contributions, along with penalties and interest.

Orders