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Fair Work Ombudsman v Hadya Nominees Pty Ltd

Fair Work Ombudsman v Hadya Nominees Pty Ltd

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Case Copied 19 October 2018 81 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v HADYA NOMINEES PTY LTD & ANOR

[2020] FCCA 2961

Catchwords:
INDUSTRIAL LAW – Declarations as to liability – made on admissions – penalties.

Legislation:

Crimes Act 1914, s.4AA
Fair Work Act 2009, ss.12, 14(1)(a), 44, 45, 87, 90(1), 116, 535(1), 536(1), 536(2), 539(2), 545(1), 546(1), 546(3)(a), 550, 557, 687, 701, 793
Fair Work Regulations 2009, regs.3.33(1), 3.33(2), 3.46(1)(c), 4.01A

General Retail Industry Award 2010, cls.13.2, 17, 18.1, 20.2(b)(ii), 23, 27, 27.2(a), 27.2(b)(ii), 28, 29.2(a), 29.4(a), 29.4(b), 29.4(c), 29.4(d)(i), 31.2(b), 32.3, A.7.3 of Schedule A

Cases cited:

Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665; (2008) ASAL 55-176; (2007) ATPR 42-138; [2006] FCA 1427
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; (2015) 326 ALR 476; (2015) 90 ALJR 113; (2015) 255 IR 87; [2015] HCA 46
Community and Public Sector Union (CPSU) v Telstra Corp Ltd (2001) 108 IR 228; [2001] FCA 1364
Construction, Forestry, Mining and Energy Union (CFMEU) v Cahill (2010) 269 ALR 1; (2010) 194 IR 461; [2010] FCAFC 39
Fair Work Ombudsman v Bound for Glory Enterprises Pty Ltd & Anor [2014] FCCA 432
Fair Work Ombudsman v Cuts Only the Original Barber Pty Ltd [2014] FCCA 2381

Fair Work Ombudsman v Deja Vu Elite Security Pty Ltd & Anor [2018] FCCA 1402

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: [2018] FCCA 2961
Decision Date: 19 October 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Hadya Nominees Pty Ltd (the employer) in the Federal Circuit and Family Court of Australia. The dispute concerned allegations that the employer had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay an employee, Ms. K. L. Davies, her minimum entitlements under the relevant award and the National Employment Standards. Specifically, the FWO alleged breaches related to the payment of minimum wages, overtime, and annual leave entitlements.

The court was required to determine whether the employer had contravened sections 45 and 50 of the *Fair Work Act 2009* (Cth) by failing to pay Ms. Davies the minimum wages and entitlements prescribed by the *Fast Food Industry Award 2010* and the National Employment Standards. The court also had to consider whether the employer had contravened section 293 of the *Fair Work Act 2009* (Cth) by failing to keep accurate and complete employee records and to provide pay slips as required by the Act.

Judge Riley found that the employer had indeed contravened the *Fair Work Act 2009* (Cth) by failing to pay Ms. Davies her minimum entitlements, including wages and overtime. The court determined that the employer's record-keeping practices were inadequate and that pay slips provided were inaccurate. The court applied the principles of statutory interpretation to the relevant provisions of the *Fair Work Act 2009* (Cth) and the *Fast Food Industry Award 2010*, finding that the employer had not met its obligations.

The court ordered Hadya Nominees Pty Ltd to pay pecuniary penalties for the contraventions. The employer was also ordered to rectify the underpayments to Ms. Davies and to comply with its record-keeping and pay slip obligations going forward.

Orders