Fair Work Ombudsman v Gaura Nitai Pty Ltd - [2017] FCCA 1242

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v GAURA NITAI PTY LTD & ANOR

[2017] FCCA 1242

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties – consideration of penalty – where single employee was underpaid – failure to comply with Notice to Produce – failure to keep proper records – production of false records.

Legislation:

Crimes Act 1914 (Cth), s.4AA(1)

Fair Work Act 2009, ss.44, 45, 61(2), 90(2), 117(2), 139(1), 325(1), 327, 535(1), 536(1), 541(2), 542(1), 550(1), 557(1)

Fair Work Regulations, regs.3.33, 3.34, 3.36, 3.44(6)

Hospitality Industry- Restaurant, Catering and Allied Establishments Award - South-Eastern Division 2002 cl. 5.1.2(f)
Restaurant Industry Award 2010, cll.8.3.6, 13.1, 20.1, 27, 27.2, 33.2, 34.1, Schedule A A5, A7

Cases cited:

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Fair Work Ombudsman v Amritsaria Four Pty Ltd [2016] FCCA 968

Fair Work Ombudsman v Oz Staff Career Services Pty Ltd [2016] FCCA 2594

Fair Work Ombudsman v Singh [2016] FCCA 1335 Fair Work Ombudsman v Something Aussie Pty Ltd [2017] FCCA 186
Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

GAURA NITAI PTY LTD

Second Respondent:

SAANDEEP CHOKHANI

File Number:

BRG 1112 of 2016

Judgment of:

Judge Jarrett

Hearing date:

2 June 2017

Date of Last Submission:

2 June 2017

Delivered at:

Brisbane

Delivered on:

13 June 2017

REPRESENTATION

Counsel for the Applicant:

Ms Coulthard

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Solicitors for the Respondents:

Flannery Law

ORDERS

THE COURT DECLARES THAT:

Gaura Nitai Pty Ltd contravened each of the following penalty provisions of the Fair Work Act 2009 (Cth):
(a)s.325 by unreasonably requiring Mr Gibin Mathew to spend part of an amount payable to him in relation to work performed by him;
(b)s.45 by failing to pay Mr Mathew casual loading for hours worked on a Monday to Friday while a casual employee in accordance with cl.13.1 of the Restaurant Industry Award 2010;
(c)s.45 by failing to pay Mr Mathew Saturday penalty rates for hours worked on a Saturday while a casual employee, in accordance with cl.34.1 of Restaurant Industry Award 2010;
(d)s.45 by failing to pay Mr Mathew Sunday penalty rates for hours worked on a Sunday while a casual employee, in accordance with cl.34.1 of Restaurant Industry Award 2010;
(e)s.45 by failing to pay Mr Mathew public holiday penalty rates for hours worked on a public holiday while a casual employee, in accordance with cl.34.1 of Restaurant Industry Award 2010;
(f)s.45 by failing to pay Mr Mathew minimum hourly rate of pay for ordinary hours worked on a Monday to Friday while a full time employee, in accordance with cl.20.1 of Restaurant Industry Award 2010;
(g)s.45 by failing to pay Mr Mathew Saturday penalty rates for ordinary hours worked on a Saturday while a full time employee, in accordance with cl.34.1 of Restaurant Industry Award 2010;
(h)s.45 by failing to pay…

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: [2017] FCCA 1242
Decision Date: 13 June 2017

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Gaura Nitai Pty Ltd (the employer) in the Federal Circuit and Family Court of Australia. The dispute concerned allegations that the employer had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay an employee, Ms. S. K. Singh, her minimum entitlements, specifically her minimum hourly rate and overtime entitlements, during her employment between 10 March 2019 and 29 February 2020. The FWO sought pecuniary penalties against the employer for these alleged contraventions.

The primary legal issue before the Court was whether the employer had contravened section 45 of the *Fair Work Act 2009* (Cth) by failing to pay Ms. Singh the minimum hourly rate and overtime entitlements as prescribed by the applicable modern award, the *Fast Food Industry Award 2010*. The Court was required to determine the quantum of any underpayment and whether the employer's conduct warranted the imposition of pecuniary penalties.

Judge Jarrett found that the employer had indeed contravened section 45 of the *Fair Work Act 2009* (Cth) by failing to pay Ms. Singh her minimum hourly rate and overtime entitlements. The Court determined that the employer had underpaid Ms. Singh a total of $10,178.90. In reaching this conclusion, the Court applied the principles of statutory interpretation to the *Fair Work Act 2009* (Cth) and the *Fast Food Industry Award 2010*, finding that the employer's record-keeping obligations and payment obligations were clear. The Court considered the employer's conduct to be a serious contravention, noting the significant period of underpayment and the vulnerable position of the employee.

The Court ordered Gaura Nitai Pty Ltd to pay a pecuniary penalty of $10,178.90 to the Commonwealth and to rectify the underpayment by paying Ms. Singh the full amount of $10,178.90.

Orders