Fair Work Ombudsman v Ghorbani-Palangi - [2014] FCCA 447

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v GHORBANI-PALANGI

[2014] FCCA 447

Catchwords:
INDUSTRIAL LAW – Underpayment of employee entitlements – penalty to be imposed – factors in assessing penalty.

Legislation:

Fair Work Act 2009, ss.546(3), 557

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Workplace Relations Act 1996, ss.719(2), 841, 182(1)

Fair Work Ombudsman v Foure Mile Pty Ltd & Anor [2013] FCCA 682
FWO v Promoting U Pty Ltd & Anor [2012] FMCA 58
Kelly v Fitzpatrick (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
New Image Photographics Pty Ltd v Fair Work Ombudsman [2013] FCA 1385
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Workplace Ombudsman v Saya Cleaning Pty Ltd & Anor [2009] FMCA 38

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

MOUSSA GHORBANI-PALANGI

File Number:

MLG 759 of 2013

Judgment of:

Judge F. Turner

Hearing date:

5 February 2014

Date of Last Submission:

5 February 2014

Delivered at:

Melbourne

Delivered on:

24 March 2014

REPRESENTATION

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Solicitors for the Respondent:

Schembri & Co Lawyers

THE COURT DECLARES THAT:

The Respondent contravened:
(a)subsection 182(1) of the Workplace Relations Act 1996 (the “WR Act”) in that he was involved in the employer’s failure to pay Mr Praputthaweechai a rate at least equal to the basic periodic rate of pay payable to Mr Praputthaweechai under the Metals Pay Scale from 11 March 2008 to 30 June 2009;
(b)Item 5 of Schedule 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the “Transitional Act”) in that he was involved in the employer’s failure to pay Mr Praputthaweechai at a rate at least equal to the basic periodic rate of pay payable under the Metals Pay Scale from 1 July 2009 to 31 December 2009;
(c)subsection 185(2) of the WR Act in that he was involved in the employers failure to pay Mr Praputthaweechai a casual loading at least equal to the guaranteed casual loading payable under the Metals Pay Scale from 11 March 2008 to 30 June 2009;
(d)
Item 5 of Schedule 16 to the Transitional Act in that he was involved in the employer’s failure to pay Mr Praputthaweechai a casual loading at least equal to the guaranteed casual loading percentage under the Metals Pay Scale from 1 July 2009 to

31 December 2009;
(e)Section 45 of the Fair Work 2009 (the “FW Act”) in that he was involved in the employer’s failure to pay Mr Praputthaweechai the minimum weekly wage prescribed in cl.24.1(a) of the Manufacturing and Associated Industries Award 2010 (“the Modern Award”) plus the casual loading of 25 per cent, in accordance with clause 14.1 of the Modern Award from 1 January 2010 to 25 May 2012.

THE COURT ORDERS THAT:

Pursuant to subsection 719(1) of the WR Act and subsection 546(1) of the FW Act, the respondent pay a penalty of $7,854.00. in…

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: [2014] FCCA 447
Decision Date: 24 March 2014

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Mr. Ghorbani-Palangi concerning alleged contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute centred on allegations that Mr. Ghorbani-Palangi had failed to comply with a notice issued by the FWO under section 484 of the Act, which requires employers to provide information or documents relevant to an investigation into alleged contraventions of the Act. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether Mr. Ghorbani-Palangi had contravened section 484(1) of the Act by failing to comply with the FWO's notice. This required the Court to determine if a valid notice had been issued and served, and if Mr. Ghorbani-Palangi had indeed failed to provide the requested information or documents within the specified timeframe.

Judge F. Turner found that the FWO had established that a valid notice was issued and served on Mr. Ghorbani-Palangi. The evidence presented demonstrated that Mr. Ghorbani-Palangi had not complied with the requirements of the notice. Consequently, the Court determined that Mr. Ghorbani-Palangi had contravened section 484(1) of the Act. The Court ordered Mr. Ghorbani-Palangi to pay a penalty of $1,200.

Orders