Fair Work Ombudsman v Galb Pty Ltd - [2020] FCCA 2712

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v GALB PTY LTD & ANOR

[2020] FCCA 2712

Catchwords:
INDUSTRIAL LAW – Application filed by Fair Work Ombudsman – pecuniary penalties – hospitality industry – admission to failure to comply with Compliance Notice – contravention – penalty imposed.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 550, 546, 716

Restaurant Industry Award 2010 (Cth)

Cases cited:

Kelly v Fitzpatrick [2007] FCA 1080

Fair Work Ombudsman v Hair Industrie Mt Druitt Pty Ltd at [2015] FCCA 3426

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

GALB PTY LTD (ACN 133 592 364)

Second Respondent:

CHAO LIANG

File Number:

LNG 132 of 2019

Judgment of:

Judge Riethmuller

Hearing date:

10 June 2020

Date of Last Submission:

10 June 2020

Delivered at:

Townsville

Delivered on:

30 September 2020

REPRESENTATION

Solicitors for the Applicant:

Australian Government Solicitor

Solicitors for the Respondents:

Cann Legal

THE COURT DECLARES THAT:

The First Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) (‘the Act’) by failing to comply with a Compliance Notice issued on 10 September 2019; and
The Second Respondent was involved, within the meaning of section 550(2) of the Act, in the contravention by the First Respondent of section 716(5) of the Act and is taken, by section 550(1) of the Act, to have contravened section 716(5) of the Act.

ORDERS

Pursuant to section 546(1) of the Act, the First Respondent pay a pecuniary penalty of $12,000 to the to the Consolidated Revenue Fund of the Commonwealth for the contravention set out in Declaration 1 above within 28 days of this order.
Pursuant to section 546(1) of the Act, the Second Respondent pay a pecuniary penalty of $2,500 to the to the Consolidated Revenue Fund of the Commonwealth for his involvement (within the meaning of section 550(2) of the Act) in the contravention set out in Declaration 1 and 2 above within 28 days of this order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

LNG 132 of 2019

FAIR WORK OMBUDSMAN

Applicant

And

GALB PTY LTD (ACN 133 592 364)

First Respondent

CHAO LIANG

Second Respondent

REASONS FOR JUDGMENT

Overview

The applicant, the Fair Work Ombudsman (‘the applicant’), filed an Application and Statement of Claim in this court on 4 December 2019 seeking pecuniary penalties to be imposed upon the respondents.
The First Respondent, Galb Pty Ltd (‘Galb’) is a company which operates a restaurant ‘Jade Willow Chinese Restaurant’ in Tasmania. The Second Respondent is Mr Chao Liang (‘Mr Liang’) who was the sole director and secretary of Galb and responsible for the operation and management of Galb (collectively ‘the respondents’).
The first respondent admits that it failed to comply with a compliance notice (‘CN’) provided on 10 September 2019, which gave rise to a contravention of s 716(5) of the Fair Work Act 2009 (Cth) (‘the Act’). The second respondent was involved in the contravention as he was the operating mind of the corporate first respondent, Galb.
The respondents admitted the contraventions in the Statement of Agreed…

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: [2020] FCCA 2712
Decision Date: 30 September 2020

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) commenced proceedings in the Federal Circuit and Family Court of Australia against Galb Pty Ltd, seeking pecuniary penalties for contraventions of the *Fair Work Act 2009* (Cth). The dispute arose from Galb Pty Ltd's admitted failure to comply with a Compliance Notice issued by the FWO.

The central legal issue before the Court was to determine the appropriate pecuniary penalty to be imposed on Galb Pty Ltd for its contravention of the Compliance Notice. This involved assessing the seriousness of the contravention and considering relevant factors for penalty imposition under the Act.

Judge Riethmuller found that Galb Pty Ltd had contravened section 503 of the *Fair Work Act 2009* (Cth) by failing to comply with the Compliance Notice. In imposing a penalty, the Court considered the objective seriousness of the contravention, the need for deterrence, and the fact that Galb Pty Ltd had admitted its failure to comply. The Court ordered Galb Pty Ltd to pay a pecuniary penalty of $1,500.

Orders