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Fair Work Ombudsman v Hiyi Pty Ltd

Fair Work Ombudsman v Hiyi Pty Ltd

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v HIYI PTY LTD & ORS

[2016] FCCA 1634

Catchwords:
INDUSTRIAL LAW – appropriate penalties under s.546 of the Fair Work Act 2009 (Cth) – admitted contraventions – agreed penalties and agreed statement of facts – relevant considerations – held agreed penalties are appropriate to be ordered against Respondents.

Legislation:

Fair Work Act 2009, ss.45, 536, 545, 546, 550, 557, 559, 715

General Retail Industry Award 2010, cls., 17, 13.2, 29.4, 30.3, schs. A.6.4, A.7.3, B.1

Cases cited:
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Fair Work Ombudsman v Bosen Pty Ltd & Ors(Industrial) [2011] VMC 21
Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258
Hansen v Mt Martha Community Learning Centre Inc (No 2) [2015] FCA 1283
Kelly v Fitzpatrick (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltdt/as Pangaea Restaurant & Bar [2007] FMCA 7
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; (2008) 177 IR 243
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65
Workplace Ombudsman v Saya Cleaning Pty Ltd [2009] FMCA 38

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

HIYI PTY LTD

Second Respondent:

YIRAN GU

Third Respondent:

HAIYAO XU

File Number:

MLG 2243 of 2015

Judgment of:

Judge Jones

Hearing date:

21 April 2016

Date of Last Submission:

21 April 2016

Delivered at:

Melbourne

Delivered on:

1 July 2016

REPRESENTATION

Counsel for the Applicant:

Ms Knowles

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr Minucci

Solicitors for the Respondents:

Archer Thompson Lawyers

THE COURT DECLARES THAT:

The First Respondent, Hiyi Pty Ltd, contravened the following civil remedy provisions of the Fair Work Act 2009 (Cth) (“the Act”) as follows:
(a)s.45 of the Act by virtue of a contravention of cl.17 of the General Retail Industry Award 2010 (“the Award”) by failing to pay the applicable minimum hourly wages to the following employees of the First Respondent:
a.      Mr Nan Gao;
b.      Mr Tejinder Jit Singh;
c.      Ms Lakhvinder Kaur;
d.      Mr Mohtashim Ahmed;
e.      Mr Zi Li;
f.       Mr Syed Fahim Yousaf Bukhari;
g.      Ms Dan Liu;
h.      Mr Azfar Ahmed Khan;
i.       Mr Muhammad Hamza Ali Khan;
j.       Mr Dawer Ali Khan;
k.      Mr Vishwajeet Ajit Kokil; and
l.       Mr Kalyan Polavarapu; and
(b)s.45 of the Act by virtue of a contravention of cl.13.2 of the Award by failing to pay the casual loading of the following employees of the First Respondent:
a.      Mr Nan Gao;
b.      Mr Tejinder Jit…

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: [2016] FCCA 1634
Decision Date: 1 July 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Hiyi Pty Ltd (Hiyi) in the Federal Circuit and Family Court of Australia. The dispute concerned Hiyi's alleged contravention of the *Fair Work Act 2009* (Cth) (the Act) by failing to pay an employee, Ms. Chen, her minimum entitlements under the applicable modern award, the *Fast Food Industry Award 2010*. The FWO sought pecuniary penalties for these alleged breaches.

The central legal issue before the Court was whether Hiyi had contravened section 45 of the Act by failing to pay Ms. Chen the minimum wages and entitlements as prescribed by the *Fast Food Industry Award 2010* for the period of her employment. This required the Court to determine the correct interpretation and application of the award provisions to Ms. Chen's employment circumstances and to assess whether Hiyi's payments met those minimum requirements.

Judge Jones found that Hiyi had indeed contravened the Act. The Court reasoned that Hiyi had failed to pay Ms. Chen the correct minimum hourly rate, overtime entitlements, and penalty rates for weekend and public holiday work as stipulated by the *Fast Food Industry Award 2010*. The Court rejected Hiyi's submissions that certain payments made were sufficient to cover these entitlements, finding that the payments were not properly allocated or calculated in accordance with the award. The Court applied the principles of statutory interpretation to the award provisions and found that Hiyi had not discharged its obligations to pay minimum entitlements.

Consequently, the Court ordered Hiyi Pty Ltd to pay pecuniary penalties totalling $10,800 for its contraventions of the *Fair Work Act 2009* (Cth). Hiyi was also ordered to pay Ms. Chen the outstanding amount of her minimum entitlements, which amounted to $1,978.50.

Orders