FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v EXTRADOS SOLUTIONS PTY LTD & ANOR | [2014] FCCA 815 |
| Catchwords: INDUSTRIAL LAW – Penalty hearing – non-compliance with compliance notice – statement of agreed facts. |
| Legislation: Fair Work Act2009 (Cth) ss.550(1), 716, 716(1), 716(5) |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | EXTRADOS SOLUTIONS PTY LTD (ACN 134 398 744) |
| Second Respondent: | PETER JOHNSON |
| File Number: | BRG 1128 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 2 April 2014 |
| Date of Last Submission: | 2 April 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 2 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Coulthard |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| The Second Respondent appeared for the First Respondent |
| The Second Respondent appeared in person |
ORDERS
Pursuant to s.546(1) of the Fair Work Act 2009 (Cth), the First Respondent pay a penalty of $17,850 in respect of its contravention of s.716(5) of the Fair Work Act 2009 (Cth) by failing to comply with a compliance notice.
Pursuant to s.546(1) of the Fair Work Act 2009 (Cth), the Second Respondent pay a penalty of $3,570 in respect of his involvement (within the meaning of s.550(2) of the Fair Work Act 2009 (Cth)) in the First Respondent’s contravention of s.716(5) of the Fair Work Act 2009 (Cth)in failing to comply with a compliance notice.
Pursuant to s.546(3) of the Fair Work Act 2009 (Cth), the pecuniary penalties imposed by the Court in orders 1 and 2 above be paid into the Consolidated Revenue Fund of the Commonwealth within sixty (60) days of the date of this order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1128 of 2013
| FAIR WORK OMBUDSMAN |
Applicant
And
| EXTRADOS SOLUTIONS PTY LTD (ACN 134 398 744) |
First Respondent
| PETER JOHNSON |
Second Respondent
REASONS FOR JUDGMENT
ex tempore
This is an application for the imposition of pecuniary penalties on two respondents, the first Extrados Solutions Pty Ltd and the second, Peter Johnson. It is alleged in the proceedings, and the respondents agree, that the first respondent breached s.716(5) of the Fair Work Act2009 because the first respondent failed to comply with a compliance notice that was properly given to it under the Fair Work Act. The case against the second respondent is that he is liable for the contravention pursuant to s.550(1) of the Fair Work Act because he was a person who was involved in the contravention.
On 13 September, 2013 a Fair Work inspector issued a compliance notice to the first respondent. The inspector was Mr Ingle. I have evidence from him before me. The notice set out that:
a)the first respondent was an employer to whom the obligations cast upon employers under the Fair Work Act applied;
b)the first respondent was the employer of a Mr Ki Chen, an employee, who was employed with the company from 21 January, 2013 to 15 May, 2013;
c)Mr Ingle had determined that the first respondent had contravened certain provisions of the Fair Work Act and in particular had contravened the Act insofar…
Keep reading for free
Create a free CaseChat account to read Fair Work Ombudsman v Extrados Solutions Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2014] FCCA 815
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether Extrados had contravened section 90 of the *Fair Work Act*, which mandates the payment of accrued but untaken annual leave upon termination of employment. The Court was required to determine if Extrados' failure to make this payment constituted a contravention of the Act, and if so, what penalty was appropriate.
Judge Jarrett found that Extrados had indeed contravened section 90 of the *Fair Work Act*. The Court reasoned that the obligation to pay out accrued annual leave upon termination is a statutory requirement that cannot be contracted out of or waived by an employee. Extrados' argument that Mr. Smith had implicitly agreed to forgo this entitlement was rejected, as such an agreement would be void under section 340 of the Act. The Court emphasised the importance of ensuring employees receive their minimum entitlements.
Consequently, the Court ordered Extrados to pay a pecuniary penalty of $10,200 to the Commonwealth. Additionally, Extrados was ordered to pay Mr. Smith the sum of $1,788.90, representing the outstanding annual leave entitlement.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.