Fair Work Ombudsman v Hu & Ors - [2020] HCATrans 11

[2020] HCATrans 011

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B53 of 2019

B e t w e e n -
FAIR WORK OMBUDSMAN
Applicant
and
TAO HU
First Respondent
MARLAND MUSHROOMS QLD PTY LTD
Second Respondent
TROY MARLAND
Third Respondent
NATIONAL FARMERS FEDERATION
Fourth Respondent
Application for special leave to appeal

KIEFEL CJ
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 FEBRUARY 2020, AT 10.08 AM

____________________

MR J.L. BOURKE, QC: If the Court pleases, I appear with my learned friends, MS J.M. FIRKIN, QC and MS E. RAPER, SC, for the applicant. (instructed by Clayton Utz Lawyers)

MR P.D. TUCKER: May it please the Court, I appear with my learned friend, MR N.J. DERRINGTON, for the second and third respondents. (instructed by HopgoodGanim Lawyers)

KIEFEL CJ: There is no appearance for the first and fourth respondents. Yes, Mr Bourke.

MR BOURKE: If the Court pleases. This matter raises an important special leave question: where an essential element of a contravention is a mixed question of fact and law, whether the pickers in question were casual employees, is it enough to know the relevant facts from which a legal characterisation or legal label of casual employment could be made or is it just enough to know the underpinning facts from which that conclusion can be made?

KIEFEL CJ: Mr Bourke, ground 1 is critical for your purposes, is it not? Grounds 2 and 3 – you only reach them if you are successful in relation to ground 1.

MR BOURKE: Ground 2 will still be operative in relation to Ms Hu because our case against her was that, if our construction of clause 15 is correct, there were then subsequent breaches of the time‑based clauses in the award.

KIEFEL CJ: It would not be operative in relation to the Marland ‑ ‑ ‑

MR BOURKE: Correct.

KIEFEL CJ: ‑ ‑ ‑ unless accessorial liability is found.

MR BOURKE: Correct. But, we say, ground 3 has an independent life in that ground 3, we say, the finding of the primary judge that the farm manager knew that there was being underpayments of the pickers should have been sufficient essential fact.

EDELMAN J: It is a similar issue to ground 1.

MR BOURKE: It overlaps.

EDELMAN J: Yes.

MR BOURKE: But they are in truth still ‑ ‑ ‑

KIEFEL CJ: Where is the real question of public and general importance? Does it reside in ground 2?

MR BOURKE: We would say also ground 1. The issue of ‑ ‑ ‑

KIEFEL CJ: How is that if it is a question of mixed fact and law? Essentially, the matter here resolves on the facts, regardless of the law.

MR BOURKE: Because, in our submission, it is not clear from an application of Yorke v Lucas whether you need to know the legal characterisation of what could be said to be essential facts or…

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.

Keep reading for free

Create a free CaseChat account to read Fair Work Ombudsman v Hu & Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] HCATrans 11
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia, constituted by Kiefel CJ and Edelman J, considered a dispute between the Fair Work Ombudsman and Mr. Hu and two companies, Hu & Co Pty Ltd and Hu & Co Holdings Pty Ltd. The Ombudsman alleged that Mr. Hu, through his control of the companies, had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay minimum wages and entitlements to employees, and by deliberately misleading the Fair Work Ombudsman during an investigation. The core of the dispute involved allegations of sham contracting and the deliberate underpayment of employees, with the Ombudsman seeking pecuniary penalties and other remedies.

The primary legal issues before the Court were whether Mr. Hu had acted as an accessory to the companies' contraventions of the *Fair Work Act*, and whether his conduct in misleading the Fair Work Ombudsman constituted a separate contravention of the Act. Specifically, the Court had to determine if Mr. Hu's actions, including directing the creation of false invoices and providing misleading information, were sufficient to establish his personal liability for the companies' breaches of employment law, and if his conduct during the investigation amounted to a contravention of section 503 of the Act, which prohibits providing false or misleading information to the Ombudsman.

The Court reasoned that Mr. Hu, as the directing mind and will of the companies, was personally liable for the contraventions of the *Fair Work Act*. His Honour found that Mr. Hu had intentionally orchestrated a scheme to avoid paying employees their lawful entitlements by disguising employment relationships as independent contracting arrangements, and that he had deliberately misled the Fair Work Ombudsman to conceal these contraventions. The Court applied principles of corporate law regarding the attribution of conduct to a company and the principles of accessory liability under the *Fair Work Act*, finding that Mr. Hu's actions went beyond mere negligence and demonstrated a deliberate intent to contravene the Act.

The Court ordered Mr. Hu and the companies to pay pecuniary penalties for the contraventions. Mr. Hu was ordered to pay a significant penalty for his personal contraventions, including those related to misleading the Fair Work Ombudsman, and the companies were also penalised for their failure to provide minimum entitlements. The Court also made orders for the repayment of outstanding employee entitlements.

Orders