Fair Work Ombudsman v Greenan (No 2) - [2017] FCCA 2059

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v GREENAN (No 2)

[2017] FCCA 2059

Catchwords:
INDUSTRIAL LAW – Penalties – placement agency – relevant worker an apprentice – placement agency responsible for paying his wages – placement agency failing to pay his wages – conflicting information about whether respondent paid any amount to the worker.

PENALTIES – egregious behaviour by placement agency – whether any contrition – none shown – no remorse – maximum penalty imposed.

REFERRAL FOR PROSECUTION – case referred to Commonwealth Director of Public Prosecutions.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 45, 99, 116, 535(1), 709, 716(5)

Fair Work Regulations 2009 (Cth), regs.3.32, 3.40

Cases cited:

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Cotis v MacPherson (2007) 169 IR 30
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Fair Work Ombudsman v Raimondi Investments Pty Ltd& Anor [2016] FCCA 1398
Kelly v Fitzpatrick [2007] FCA 1080
Markarian v R (2005) 228 CLR 357
McIver v Healey [2008] FCA 425
Meadley v Sort Worx Pty Ltd [2013] FCA 1012
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65
Re Stephen Gibbs v the Mayor, Councillors and Citizens of the City of Altona [1992] FCA 553
Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550

Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

LEONARD GREENAN

File Number:

MLG 122 of 2017

Judgment of:

Judge Wilson

Hearing date:

On the papers

Date of Last Submission:

26 July 2017

Delivered at:

Melbourne

Delivered on:

31 August 2017

REPRESENTATION

Solicitors for the applicant:

Solicitor for Fair Work Ombudsman

No appearance by the respondent

I ORDER THAT -

Pursuant to s.546(1) of the Fair Work Act 2009 (Cth) (“FWA”) the respondent pay the following penalties –
(a)in the amount of $5,400.00 in respect of the respondent’s contravention of s.716(5) of FWA by failing to comply with a compliance notice dated 26 July 2016; and
(b)in the amount of $5,400.00 in respect of the respondent’s contravention of s.535(1) of FWA by failing to make and keep, for a period of seven years, employee records of the kind prescribed by regulations 3.32 and 3.40 of the Fair Work Regulations 2009 (Cth) (“the regulations”),
as declared in the orders made by his Honour Judge Wilson on

28 June 2017.
Pursuant to s.546(3) of FWA, an order that the penalties set out above be paid within…

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: [2017] FCCA 2059
Decision Date: 31 August 2017

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Greenan (the respondent) concerning alleged contraventions of the *Fair Work Act 2009* (Cth). The dispute centred on Greenan's failure to pay wages to an apprentice placed with a client company. The FWO sought pecuniary penalties for these contraventions.

The court was required to determine whether Greenan had contravened the *Fair Work Act* by failing to pay the apprentice's wages. It also had to consider the appropriate penalty for any contraventions found, taking into account factors such as the nature of the conduct, the respondent's contrition, and the need for deterrence. The court also had to decide whether to refer the matter for prosecution.

Justice Wilson found that Greenan had contravened the *Fair Work Act* by failing to pay the apprentice's wages. In determining the penalty, the court noted the egregious nature of the placement agency's conduct and the lack of any evidence of contrition or remorse from the respondent. Consequently, the court imposed the maximum penalty available under the legislation. The court also referred the matter to the Commonwealth Director of Public Prosecutions for consideration of prosecution.

Orders