Fair Work Ombudsman v Hu (No 3)

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Hu (No 3) [2020] FCA 936

File number:

QUD 708 of 2016

Judge:

RANGIAH J

Date of judgment:

29 June 2020

Catchwords:

INDUSTRIAL LAW - pecuniary penalties – admitted contraventions of ss 45 and 546 of the Fair Work Act 2009 (Cth) – where parties agreed penalties – penalties imposed

Legislation:

Fair Work Act2009 (Cth) ss 45, 536 and 546

Fair Work Regulations 2009 (Cth) reg 3.46

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482

Construction, Forestry, Mining and Energy Union v Coal & Allied Operations (No 2) (1999) 94 IR 231

Fair Work Ombudsman v Hu [2019] FCAFC 133

Fair Work Ombudsman v Hu [2020] HCATrans 011

Fair Work Ombudsman v Hu (No. 2) [2018] FCA 1034
Kelly v Fitzpatrick (2007) 166 IR 14
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61

Date of hearing:

29 June 2020

Registry:

Queensland

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

18

Counsel for the Applicant:

Mr J Bourke QC

Solicitor for the Applicant:

Fair Work Ombudsman

Counsel for the Respondent:

Mr D Grippi

Solicitor for the Respondent:

Johnsons Law Group

ORDERS

QUD 708 of 2016

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

TAO HU

Respondent

JUDGE:	RANGIAH J
DATE OF ORDER:	29 JUNE 2020

THE COURT DECLARES THAT:

1.The first respondent was involved in, within the meaning of s 550(2) of the Fair Work Act 2009 (Cth) (FW Act), the contravention by HRS Country Pty Ltd (HRS Country) of each of the following civil penalty provisions:

(a)s 45 of the FW Act by HRS Country failing to pay each of its employees who were 20 years of age or older and have an applicable entry in Column A of Schedule A to these orders (save for the employee at line 80 of Schedule A), the minimum hourly rate for ordinary hours worked pursuant to cl 14.1 of the Horticulture Award 2010 (the Horticulture Award);

(b)s 45 of the FW Act by HRS Country failing to pay the employee who was under 20 years of age and has an applicable entry in Column A of Schedule A to these orders, namely, the employee at line 80, the minimum hourly rate for hours worked pursuant to cl 16.1 of the Horticulture Award and cll A.2 and A.3 of Schedule A of the Horticulture Award;

(c)s 45 of the FW Act by HRS Country failing to pay each of its employees who have an applicable entry in Column B of Schedule A to these orders, a casual loading pursuant to cl 10.4(b) of the Horticulture Award and cl A.5 of Schedule A of the Horticulture Award;

(d)s 45 of the FW Act by HRS…