Fair Work Ombudsman v Global Express Consultancy Pty Ltd - [2016] FCCA 2446

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v GLOBAL EXPRESS CONSULTANCY PTY LTD & ANOR

[2016] FCCA 2446

Catchwords:
INDUSTRIAL LAW – Penalty – contraventions of the Storage Services and Wholesale Award 2010 and Food, Beverage and Tobacco Manufacturing Award 2010 relating to remuneration – failure to comply with record keeping obligations under the Fair Work Act 2009 (Cth) – appropriate penalty to be imposed on each respondent – relevant considerations – applicable penalty for each contravention.

Legislation:

Crimes Act 1914 (Cth), s.4AA(1)
Fair Work Act 2009 (Cth), ss.3, 45, 323(1), 324, 536(2), 539, 546, 550(2), 557, pt.2-2
Fair Work Regulations 2009 (Cth), sub-reg.3.46(1)(f), 4.01A

Cases cited:

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8
Australian Workers Union v Johnson Matthey (Aust) Ltd [2000] FCA 728
Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 90 ALJR 113; [2015] HCA 46
Fair Work Ombudsman v Devine Marine Group Pty Ltd (2015) 234 FCR 122; [2015] FCA 370
Johnson v R (2004) 78 ALJR 616; [2004] HCA 15
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70
Pearce v R (1998) 194 CLR 610; [1998] HCA 57
Rocky Holdings Pty Limited v Fair Work Ombudsman (2014) 221 FCR 153; [2014] FCAFC 62

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

GLOBAL EXPRESS CONSULTANCY PTY LTD (ACN 103 569 839)

Second Respondent:

YAN HU

File Number:

SYG 2958 of 2015

Judgment of:

Judge Smith

Hearing date:

9 August 2016

Date of Last Submission:

9 August 2016

Delivered at:

Sydney

Delivered on:

11 October 2016

REPRESENTATION

Counsel for the Applicant:

Ms V R Brigden

Solicitors for the Applicant:

Fair Work Ombudsman

The Second Respondent appeared in person.

DECLARATIONS

The first respondent, Global Express Consultancy Pty Ltd contravened the following civil penalty provisions:
(a)section 45 of the Fair Work Act 2009 (Cth) (“FW Act”) by failing to pay each of the Banquet Desserts Pty Ltd (“Banquet”) Employees and the Vienna Schubert Estia Pty Ltd (“VSE”) Employees minimum weekly wages as required by clauses 13.1 and A.2.5 of Schedule A to the Food, Beverage and Tobacco Manufacturing Award 2010 (“Food Manufacturing Award”);
(b)section 45 of the FW Act by failing to pay each of the South Pack Laboratories Pty Ltd (“SPL”) Employees minimum weekly wages as required by clause 15.1 of the Storage Services and Wholesale Award 2010 (“Storage Services Award”);
(c)section 45 of the FW Act by failing to pay each of the Banquet Employees and the VSE Employees casual loading as required by clauses 13.1 and A.2.5 of Schedule A to the Food Manufacturing Award;
(d)section 45 of the FW Act by failing to pay each of the SPL Employees casual loading as required by subclause 11.4(b) of the Storage Services Award;
(e)section 45 of the FW Act by failing to pay each of the Saturday Banquet Employees a penalty rate for all ordinary…

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: [2016] FCCA 2446
Decision Date: 11 October 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Global Express Consultancy Pty Ltd (Global Express) in the Federal Circuit and Family Court of Australia. The dispute concerned allegations that Global Express had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to make superannuation contributions for certain employees.

The primary legal issue before the Court was whether Global Express had contravened section 52 of the *Fair Work Act 2009* (Cth) by failing to make the required superannuation contributions for its employees. This involved determining the scope of Global Express's obligations under the relevant industrial instrument and the *Superannuation Guarantee (Administration) Act 1992* (Cth).

Judge Smith found that Global Express had indeed contravened section 52 of the *Fair Work Act 2009* (Cth). The Court reasoned that the company had a clear obligation to make superannuation contributions for its employees in accordance with the applicable award and relevant legislation. The failure to do so constituted a contravention. The Court applied the principles of statutory interpretation to ascertain the employer's obligations and the consequences of non-compliance.

The Court ordered Global Express to pay the outstanding superannuation contributions, along with interest, and imposed penalties for the contraventions.

Orders