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Fair Work Ombudsman v Green Clean (Aust) Pty Ltd (No.2)

Fair Work Ombudsman v Green Clean (Aust) Pty Ltd (No.2)

Case [2023] FedCFamC2G 260 6 April 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Green Clean (Aust) Pty Ltd (No.2) [2023] FedCFamC2G 260

File number(s): SYG 1100 of 2020

Judgment of: JUDGE OBRADOVIC

Date of judgment: 6 April 2023

Catchwords: INDUSTRIAL LAW – PENALTY – contraventions of the Fair Work Act 2009 (Cth) – underpayments pursuant to the Cleaning Services Award 2010 – previous contraventions

Legislation: Fair Work Act 2009 (Cth) ss 541, 546

Cases cited:
Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46

Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1

Fair Work Ombudsman v Kentwood Industrial Pty Ltd (No.3) [2011] FCA 579

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301

Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498

Fair Work Ombudsman v Promoting U Pty Ltd & Anor [2012] FMCA 58

Kelly v Fitzpatrick [2007] FCA 1080

Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7

Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70

Trade Practices Commission v CSR Ltd [1990] FCA 521

Division: Division 2 General Federal Law

Number of paragraphs: 78

Date of hearing: 30 January 2023

Place: Parramatta

Counsel for the Applicant: Ms Brigden

Solicitors for the Applicant: Fair Work Ombudsman

Appearing for the First Respondent: Mr Girowal as Director

Appearing for the Third Respondent: No appearance

ORDERS

SYG 1100 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
GREEN CLEAN (AUST) PTY. LTD.

First Respondent

MS KAREENA COLTON

Third Respondent

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

6 April 2023

THE COURT ORDERS THAT:
1.Pursuant to s.545(1) of the Fair Work Act 2009 (Cth) (“FW Act”), the first respondent is to make superannuation contributions to each of Mr Shashi Parajuli’s and Ms Riddhi Sangacche’s nominated superannuation funds consisting of the minimum required superannuating contributions prescribed by the Superannuation Guarantee (Administration) Act 1992 (Cth) within 28 days of this order.
2.Pursuant to s.546(1) of the FW Act:
(a)The first respondent pay pecuniary penalties of $105,840 to the Consolidated Revenue Fund of the Commonwealth within 28 days of this order for its contraventions of ss.45, 536(1) and 718A of the FW Act declared on 3 June 2022; and
(b)The third respondent pay pecuniary penalties of $18,346 to the Consolidated Revenue Fund of the Commonwealth within 28 days of this order for her contraventions of ss.45, 536(1) and 718A of the FW Act declared on 3 June 2022.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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…

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 (No.2)

Details

AGLC: Fair Work Ombudsman v Green Clean (Aust) Pty Ltd (No.2) [2023] FedCFamC2G 260
Case: [2023] FedCFamC2G 260
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered the case of Fair Work Ombudsman v Green Clean (Aust) Pty Ltd (No.2). This case involved the Fair Work Ombudsman bringing proceedings against Green Clean (Aust) Pty Ltd and Ms Kareena Colton for contraventions of the Fair Work Act 2009 (Cth). The contraventions related to the underpayment of employees pursuant to the Cleaning Services Award 2010 and the production of false or misleading documents to a Fair Work Inspector. The Court had previously determined the liability of the respondents in Fair Work Ombudsman v Green Clean (Aust) Pty Ltd [2022] FedCFamC2G 426. The primary focus of this case was to determine the appropriate penalties to be imposed on the respondents.

The Court examined several factors relevant to the determination of penalty, including the nature and extent of the conduct, the circumstances in which it took place, and the impact on the employees involved. The Court found that the contraventions were deliberate and that the respondents had previous history of similar conduct. The Court also considered the need for deterrence, both specific and general, in ensuring compliance with minimum employment standards.

After considering the submissions of the parties and the relevant factors, the Court determined that the appropriate penalties should be proportionate to the conduct engaged in by the respondents while ensuring that the penalties were not crushing or oppressive. The Court imposed penalties of $105,840 on Green Clean (Aust) Pty Ltd and $18,346 on Ms Kareena Colton, with an overall reduction of 30% based on the principle of totality. The Court emphasised the importance of specific and general deterrence in upholding minimum employment standards and ensuring compliance with the Fair Work Act.

Orders