FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v FORTCREST INVESTMENTS PTY LTD | [2010] FMCA 18 |
| INDUSTRIAL LAW – Takeaway business underpaying an employee – also failing to provide the employee with pay slips and failing to keep adequate records of superannuation contributions – liability admitted – assessment of penalties. |
| Workplace Relations Act 1996 (Cth), ss.149(e), 178(20, 178(4) 182(1), 513, 208(2), 719(4), 846(2) Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Workplace Relations Regulations 2006 (Cth), rr.19.20, 19.13, 14.4, 19.21 Workplace Relations Regulations 1996 (Cth), rr.132A, 131H Retail Wholesale and Distributive Employees (NT) Award, cl.13, 21 |
| Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Fair Work Ombudsman & Land Choice Pty Ltd [2009] FMCA 1255 |
| Applicant: | FAIR WORK OMBUDSMAN |
| Respondent: | FORTCREST INVESTMENTS PTY LTD ACN 070 865 824 |
| File Number: | DNG 4 of 2009 |
| Judgment of: | Terry FM |
| Hearing date: | 4 November 2009 |
| Date of Last Submission: | 4 November 2009 |
| Delivered at: | Darwin |
| Delivered on: | 18 January 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Liveris |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the Respondent: | Mr O'Loughlin |
| Solicitors for the Respondent: | TS Lee & Associates |
ORDERS
IT IS DECLARED THAT:
The Respondent has, by failing between 30 June 2003 and 28 March 2008 to pay Naomi Atkinson (the employee) the minimum wage and the District Allowance to which she was entitled contravened:
(a)S.149(e) of the Workplace Relations Act 1996 in force prior to the enactment of the Workplace Relations Amendment (Work Choices) Act 2005 (“the pre-reform Act”) and s.182(1) of the Workplace Relations Act 1996 (“WR Act”);
(b)Clause 13 of the Retail Wholesale and Distributive Employees (NT) Award (“the Award”);
(c)S.149(e) of the pre-reform Act and s.513 of the Workplace Relations Act; and
(d)Clause 21 of the Award.
The Respondent has, by failing between 30 June 2003 and 28 March 2008 to provide payslips to the employee, contravened regulation 132A of the Workplace Relations Regulations in force prior to the enactment of the Workplace Relations Amendment (Work Choices) Act2005 (“the pre-reform Regulations”) and Regulation 19.20 of the Workplace Relations Regulations 2006 (“WR Regulations”);
The Respondent has, by failing between 30 June 2003 and 28 March 2008 to keep records of superannuation contributions made on behalf of the employee in accordance with the requirements of the regulations, contravened regulation 131H of the pre-reform Regulations and…
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- AGLC
- Fair Work Ombudsman v Fortcrest Investments Pty Ltd [2010] FMCA 18
- Case
- [2010] FMCA 18
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to resolve were whether the respondent had indeed failed to adhere to the specified labour laws and regulations, and if so, whether the penalties imposed were appropriate. The court examined the specific provisions of the Workplace Relations Act and Regulations to ascertain if the respondent had contravened these laws by not paying the required wages and allowances, by not providing payslips, and by not maintaining proper records of superannuation contributions.
The court found that Fortcrest Investments Pty Ltd had indeed contravened the relevant laws and regulations by not paying the employee the minimum wage, the District Allowance, and by failing to provide payslips and maintain proper records of superannuation contributions. The court accepted the evidence and arguments presented by the Fair Work Ombudsman, concluding that the respondent had breached the statutory obligations. Consequently, the court declared the contraventions and ordered the respondent to pay penalties for each identified breach. The penalties were calculated based on the nature and duration of the contraventions.
The court ordered that Fortcrest Investments Pty Ltd pay penalties totaling $22,200 to the Commonwealth Consolidated Revenue Fund by a specified date. This included penalties for failure to pay minimum wages and allowances, failure to provide payslips, and failure to maintain records of superannuation contributions. This decision underscored the importance of compliance with labour laws and the consequences of non-compliance.
Orders
Orders of the court
IT IS DECLARED THAT:
1.
The Respondent has, by failing between 30 June 2003 and 28 March 2008 to pay Naomi Atkinson (the employee) the minimum wage and the District Allowance to which she was entitled contravened:
(a) S.149(e) of the Workplace Relations Act 1996 in force prior to the enactment of the Workplace Relations Amendment (Work Choices) Act 2005 (“the pre-reform Act”) and s.182(1) of the Workplace Relations Act 1996 (“WR Act”);
(b) Clause 13 of the Retail Wholesale and Distributive Employees (NT) Award (“the Award”);
(c) S.149(e) of the pre-reform Act and s.513 of the Workplace Relations Act; and
(d) Clause 21 of the Award.
2.
The Respondent has, by failing between 30 June 2003 and 28 March 2008 to provide payslips to the employee, contravened regulation 132A of the Workplace Relations Regulations in force prior to the enactment of the Workplace Relations Amendment (Work Choices) Act 2005 (“the pre-reform Regulations”) and Regulation 19.20 of the Workplace Relations Regulations 2006 (“WR Regulations”);
3.
The Respondent has, by failing between 30 June 2003 and 28 March 2008 to keep records of superannuation contributions made on behalf of the employee in accordance with the requirements of the regulations, contravened regulation 131H of the pre-reform Regulations and Regulation 19.13 of the WR Regulations.
IT IS ORDERED THAT:
4.
The Respondent pay a penalty of:
(a)
$10,000.00 in respect of the contravention of s.149(e) and
s.182(1) of the legislation (failure to pay a minimum wage or basic period rate of pay);
(b) $10,000.00 in respect of the contravention of s.149(e) and s.513 of the legislation (failure to pay a District Allowance);
(c) $1,100.00 in respect of its contravention of rr.132A and 19.20 of the regulations (failure to provide pay slips); and
(d) $1,100.00 in respect of its contravention of rr.131H and 19.13 of the regulations (failure to keep records of superannuation paid on behalf of the employee as prescribed by the legislation).
5.
The penalties referred to in (4) above be paid to the Commonwealth Consolidated Revenue Fund by 4.00pm on 18 April 2010.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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