Fair Work Ombudsman v Green Clean (Aust) Pty Ltd - [2022] FedCFamC2G 426

Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Green Clean (Aust) Pty Ltd [2022] FedCFamC2G 426

File number(s): SYG 1100 of 2020

Judgment of: JUDGE OBRADOVIC

Date of judgment: 3 June 2022

Catchwords: INDUSTRIAL LAW – Fair Work – contravention of the Fair Work Act 2009 – director’s liability for company breach – accessorial liability of employee – liability established.

Legislation: Fair Work Act 2009 (Cth) ss.45, 536, 550, 718, 718A
Cleaning Services Award 2010 cl.12, 16, 20, 23, 27, 28

Cases cited: Australian Securities and Investment Commission v AGM Markets Pty Ltd (in liquidation) (No.3) [2020] FCA 208
NMFM Property Pty Ltd v Citibank Ltd (No.10) [2000] FCA 1558
Walplan Pty Ltd v Wallace [1985] FCA 619

Division: Division 2 General Federal Law

Number of paragraphs: 35

Date of hearing: 4 and 5 April 2022

Place: Parramatta

Counsel for the Applicant: Ms Brigden

Solicitor for the Applicant: Fair Work Ombudsman

Appearing for the First Respondent: Mr Girowal as director

Appearing for the Third Respondent: In person
ORDERS

SYG 1100 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
AND:

GREEN CLEAN (AUST) PTY. LTD.

First Respondent

KAREENA COLTON

Third Respondent

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

3 June 2022

THE COURT DECLARES THAT:
1.The First Respondent contravened:
(a)Section 45 of the Fair Work Act 2009 (Cth) (“FW Act”) by failing to pay Mr Shashi Parajuli and Ms Riddhi Sangachhe (“the Employees”) the minimum hourly rate as required by clause 16 of the Cleaning Services Award 2010 (“Cleaning Award”);
(b)Section 45 of the FW Act by failing to pay the Employees casual loading as required by clause 12.5(a) of the Cleaning Award;
(c)Section 45 of the FW Act by failing to pay the Employees shiftwork penalty rates as required by clause 27.1 of the Cleaning Award;
(d)Section 45 of the FW Act by failing to pay the Employees overtime rates as required by clause 28.2 of the Cleaning Award;
(e)Section 45 of the FW Act by failing to pay the Employees broken shift allowances as required by clause 17.1 of the Cleaning Award;
(f)Section 45 of the FW Act by failing to pay the Employees amounts due within seven days of termination as required by clause 20.5 of the Cleaning Award;
(g)Section 45 of the FW Act by failing to make superannuation contributions on behalf of the Employees as required by clause 23.2 of the Cleaning Award;
(h)Section 536 of the FW Act by failing to provide pay slips to the Employees within one working day of paying amounts to them in relation to the performance of work; and
(i)Section 718A of the FW Act by producing documents to a Fair Work Inspector with knowledge or recklessness as to whether the documents were false or misleading.

2.The Third Respondent was involved, within the meaning of section 550 of the FW Act, in the first respondent’s contraventions of sections 45, 536 and 718A of…

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.

Continue reading Fair Work Ombudsman v Green Clean (Aust) Pty Ltd

Details

AGLC: Fair Work Ombudsman v Green Clean (Aust) Pty Ltd [2022] FedCFamC2G 426
Case: [2022] FedCFamC2G 426
Decision Date

CaseChat Overview and Summary

The case involves the Fair Work Ombudsman (Applicant) suing Green Clean (Aust) Pty Ltd (First Respondent) for alleged contraventions of the Fair Work Act 2009. The third respondent, Ms. Keelena Colton, was involved in the contraventions as an employee or agent of the First Respondent. The Federal Circuit and Family Court of Australia had to determine whether the First Respondent contravened section 718 of the Fair Work Act by producing documents to a Fair Work Inspector with knowledge or recklessness as to whether the documents were false or misleading and whether the third respondent was involved in that contravention.

The court found that the third respondent was involved in the contraventions as she had sent emails to the applicant in response to the Notice to Produce. The court held that the third respondent engaged in the admitted conduct in the course of the First Respondent's business, affairs, or activities, and she did so either as an employee or an agent of the First Respondent. The court further found that the third respondent had actual authority to reply to the applicant's emails from the First Respondent's email address. The court held that the First Respondent is liable for the third respondent's conduct, and the third respondent was involved in the contraventions of section 718A of the Fair Work Act.

The court declared that the First Respondent contravened various sections of the Fair Work Act, including section 718A. The court further ordered that the matter is listed for directions in respect of penalty at 10:15 am on 5 August 2022. The form of the order is subject to the entry in the Court's records.

Orders