Fair Work Ombudsman v Gothic Downs Pty Ltd

Link copied
Case Copied 22 min read

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Gothic Downs Pty Ltd [2022] FedCFamC2G 21

File number(s): MLG 2176 of 2020
Judgment of: JUDGE RILEY
Date of judgment: 24 January 2022
Catchwords: INDUSTRIAL LAW – Whether the first respondent failed to comply with a compliance notice – whether the second respondent was accessorily liable.
Legislation: Fair Work Act 2009, ss.550(1), 716 and 717
Cases cited: George v Rockett (1990) 170 CLR 104 (at 116); (1990) 93 ALR 483; (1990) 64 ALJR 384; (1990) 48 A Crim R 246; [1990] HCA 26 at [14]
Division Division 2 General Federal Law
Number of paragraphs: 44
Date of last submissions: 13 December 2021
Date of hearing: 29 November 2021
Place: Melbourne
Counsel for the applicant: Jack Tracey
Solicitor for the applicant: Office of the Fair Work Ombudsman
Advocate for the first respondent: Azwar Koya
Solicitor for the first respondent: Koya & Co
Advocate for the second respondent: Azwar Koya
Solicitor for the second respondent: Koya & Co

ORDERS

MLG 2176 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FAIR WORK OMBUDSMAN
Applicant
AND:

GOTHIC DOWNS PTY LTD
(ACN 006 552 058)
First Respondent

GIUSEPPE CONFORTO
Second Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

24 JANUARY 2022

THE COURT DECLARES THAT:

1.The first respondent contravened:

a.s.716(5) of the Fair Work Act 2009 (“the Act”) by failing to comply with a compliance notice given to it on 13 December 2019 in respect of Dawinder Kaur; and

b.s.716(5) of the Act by failing to comply with a compliance notice given to it on 13 December 2019 in respect of Sahar Abdulkarim.

2.The second respondent was involved, within the meaning of s.550 of the Act, in the first respondent’s contraventions of s.716(5) of the Act by failing to comply with each of the compliance notices.

THE COURT ORDERS THAT:

3.Pursuant to s.547(2) of the Act, the first respondent, within 28 days of this order, pay interest, at the Federal Court of Australia pre-judgment interest rate, to:

(a)Ms Kaur:

(i)on the amount of $25,343.55 for the period 24 June 2020 to 4 September 2020; and

(ii)on the amount of $4,566.38 for the period 5 September 2020 to 30 November 2021; and

(b)Ms Abdulkarim, on the amount of $4,762.00 for the period 24 June 2020 to 4 September 2020.

4.The question of penalties be the subject of a further hearing on a date to be advised.

5.The applicant have liberty to apply.

Note:The form of the order is subject to the entry in the court’s records.

Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE RILEY:

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Fair Work Ombudsman v Gothic Downs Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FedCFamC2G 21
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman ("the Ombudsman") filed an application against Gothic Downs Pty Ltd and its sole director, Giuseppe Conforto, alleging that the company failed to comply with two compliance notices and that Mr. Conforto was accessorily liable for the company's contraventions. The dispute centers on Gothic's alleged failure to comply with specific terms of the General Retail Industry Award 2010 and the National Employment Standards, particularly concerning the underpayment of wages and allowances to two employees, Dawinder Kaur and Sahar Abdulkarim. The primary legal issues before the court were whether Gothic failed to comply with the compliance notices issued by the Ombudsman and, if so, whether Mr. Conforto was accessorily liable for those failures.

The court found that the respondents had the burden of proving any inaccuracies in the Ombudsman's calculations. Given that the respondents did not provide any evidence to counter the Ombudsman's figures, the court accepted the Ombudsman's calculations for the purpose of determining interest. The court ruled that Gothic did indeed fail to comply with the compliance notices, as it did not rectify the underpayments to Kaur and Abdulkarim within the specified timeframes. Furthermore, the court found Mr. Conforto accessorily liable for Gothic's contraventions, as he was the sole director of the company at the relevant times.

The court granted the declarations and orders sought by the Ombudsman, except for the penalty orders, which were to be determined after further submissions from the parties. The court emphasized that any difficulties with the calculations and demonstrating the accuracy of Gothic's figures were the company's own responsibility and could not be attributed to the Ombudsman.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant is the Fair Work Ombudsman (“the Ombudsman”). The first respondent (“Gothic”) is a company that was incorporated in 1986. It operates two bakeries and has 11 staff. The second respondent (“Mr Conforto”) is a baker by trade and was at all relevant times the sole director of Gothic. BACKGROUND The Ombudsman’s written submissions filed on 30 June 2021 set out the background to this matter as follows:1. In this proceeding the Applicant, the Fair Work Ombudsman, alleges that:(a)the First Respondent, Gothic Downs Pty Ltd, contravened section 716(5) of the Fair Work Act 2009 (FW Act) by failing to comply with:(i)a compliance notice given to it on 13 December 2019 in respect of its employment of Dawinder Kaur (Kaur Compliance Notice); and(ii)a compliance notice given to it on 13 December 2019 in respect of its employment of Sahar Abdulkarim (Abdulkarim Compliance Notice),(collectively, Compliance Notices); and(b)the Second Respondent, Giuseppe Conforto, was involved, within the meaning of section 550 of the FW Act, in the First Respondent’s contraventions of section 716(5) of the FW Act. …4.In February 2019, the Applicant commenced an investigation after receiving requests for assistance from Sahar Abdulkarim (Ms Abdulkarim) and Dawinder Kaur (Ms Kaur) (collectively, Employees) in relation to their employment by the First Respondent (Investigation).15.In the course of the Investigation, the Applicant obtained evidence from various sources including the Employees, MatchWorks employment services and the Respondents.26.Following the Investigation, Fair Work Inspector James Roberts (FWI Roberts) formed what the Applicant submits was a reasonable belief that the First Respondent had contravened the following terms of the General Retail Industry Award 2010 (Retail Award) and the National Employment Standards (NES):(a) in respect of Ms Kaur’s employment:(i)clause 17 of the Retail Award by failing to pay the minimum wage to Ms Kaur in respect of ordinary hours worked;(ii)clause 29.2(d) of the Retail Award by failing to pay Ms Kaur overtime for hours worked on a Sunday in excess of the ordinary hours of work;(iii)clause 30.4(a) of the Retail Award by failing to pay Ms Kaur an early morning shift allowance when she commenced work at or after 2:00 am and before 6:00 am;(iv)clause 30.4(c) of the Retail Award by failing to pay Ms Kaur at a rate of 150% of the ordinary rate of pay for work performed on a Saturday;(v)clause 32.3(b)(ii) of the Retail Award by failing to pay Ms Kaur annual leave loading;(vi)section 90(2) of the FW Act by failing to pay Ms Kaur her accrued and untaken annual leave on termination of her employment; and(vii)section 99 of the FW Act by failing to pay Ms Kaur at her base rate of pay for her ordinary hours of work during a period of personal leave; and(b) in respect of Ms Abdulkarim’s employment:(i)clause 12.7 of the Retail Award by failing to pay Ms Abdulkarim 1/38th of the prescribed weekly rate for ordinary hours worked.37.On 13 December 2019, FWI Roberts gave the Compliance Notices to the First Respondent by sending them by post to the First Respondent’s registered address, and by email to the Second Respondent.48.The Kaur Compliance Notice required the First Respondent to calculate and rectify any underpayments and superannuation owed to Ms Kaur by 31 January 2020 and produce reasonable evidence of its compliance to the Applicant by 7 February 2020.59.The Abdulkarim Compliance Notice required the First Respondent to calculate and rectify any underpayments and superannuation owned to Ms Abdulkarim by 31 January 2020 and produce reasonable evidence of its compliance to the Applicant by 7 February 2020.610.The First Respondent did not take the actions required by the Compliance Notices within the specified time7 and, in respect of the Kaur Compliance Notice, has not done so to date.8:Affidavit of James William Roberts sworn 14 April 2021 (Roberts Affidavit) at [5] to [6]. :Roberts Affidavit at [7] and [14]. :Roberts Affidavit at [23], JWR-10 and JWR-21. :Statement of Claim filed 24 June 2020 (SOC) at [9], Defence filed 4 September 2020 (Defence) at [9], Roberts Affidavit at [24] to [25], JWR-22 and JWR-23. :SOC at [10], Defence at [10], Roberts Affidavit at [26] and JWR-22. :SOC at [12]. Defence at [12], Roberts Affidavit at [27] and JWR-22. :SOC at [19], Defence at [19], Roberts Affidavit at [31] to [42] and JWR-25 to JWR-31. :Roberts Affidavit at [31] to [44] and JWR-25 to JWR-32. MATERIALS RELIED UPON

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the present case, the respondents have claimed that the payslips were not accurate. That was their responsibility. Any difficulty with calculation, and any difficulty demonstrating that Gothic’s figures are correct, are Gothic’s own responsibility. They cannot shift the blame for this to the Ombudsman.CONCLUSION In these circumstances, I am satisfied that it is appropriate to make the declarations and orders sought by the Ombudsman, as set out in her submissions filed on 30 June 2021 and as amended in her submissions filed on 6 December 2021, save that I will hear the parties before making any order in relation to penalties. In the absence of any evidence from the respondents, I accept the Ombudsman’s figures for the purposes of the interest calculation.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.