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Fair Work Ombudsman v HW Carpentry Solutions Pty Ltd

Fair Work Ombudsman v HW Carpentry Solutions Pty Ltd

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Case Copied 21 December 2016 51 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v HW CARPENTRY SOLUTIONS PTY LTD & ANOR

[2016] FCCA 3283

Catchwords:
INDUSTRIAL LAW – Determination of penalties in relation to admitted contraventions of Fair Work Act 2009 (Cth) including breach of Order of the Fair Work Commission – agreed statement of facts – submissions in relation to appropriate penalty – parties agree on penalty in relation to both Respondents.

Legislation:

Fair Work Act 2009 (Cth), ss.392, 405, 550(1) & (2)

Cases cited:

Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (2001) ATPR 41-815
Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (2002) ATPR 41-880
Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851

Australian Ophthalmic Supplies Limited v McAlary-Smith (2008) 165 FCR 560

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (2015) 90 ALJR 113; (2016) 326 ALR 476; (2016) 255 IR 87
Kelly v Fitzpatrick (2007) 166 IR 14
Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993

NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Ponzio v B & P Caelli Constructions Pty Limited (2007) 158 FCR 543
Trade Practices Commission v Allied Mills Industries Pty Ltd (No 4) (1981) 37 ALR 256

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

HW CARPENTRY SOLUTIONS PTY LTD ACN 162 180 823

Second Respondent:

HEATH PATRICK FRANCIS WRIGHT

File Number:

CAG 77 of 2014

Judgment of:

Judge Neville

Hearing date:

10 February 2016

Date of Last Submission:

23 May 2016

Delivered at:

Canberra

Delivered on:

21 December 2016

REPRESENTATION

Solicitors for the Applicant:

Office of Fair Work Ombudsman, Melbourne

Solicitors for the Respondents:

Chamberlain’s Law Firm, Canberra

ORDERS:

THE COURT DECLARES THAT:

The First Respondent contravened section 405 of the Fair Work Act 2009 (Cth) (“the FW Act”) by contravening a term of an Order.
The Second Respondent was involved in the First Respondent's contravention of section 405 of the FW Act pursuant to subsection 550(1) of the FW Act.

THE COURT ORDERS THAT:

Pursuant to section 545(2)(b) of the FW Act, the First Respondent pay compensation to Mr Hourigan in the amount of $7,650.00 within 14 days of the date of these Orders.
Pursuant to section 547(2) of the FW Act, the First Respondent pay interest to Mr Hourigan at the applicable pre-judgment rate on the amount referred to in Order 3 within 14 days of the date of these Orders.
Pursuant to section 546(1) of the FW Act, the First Respondent pay $32, 136 as a pecuniary penalty for the Admitted Contraventions.
Pursuant to section 546(1) of the FW Act, the Second Respondent pay $6,426 as a pecuniary penalty for the Admitted Contraventions.
Pursuant to section 546(3)(a) of the FW Act, the First Respondent pay its penalty to the Commonwealth 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: [2016] FCCA 3283
Decision Date: 21 December 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against HW Carpentry Solutions Pty Ltd (HW Carpentry) in the Federal Circuit and Family Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by HW Carpentry, specifically relating to the underpayment of wages to an employee. The FWO sought penalties against HW Carpentry and orders for the recovery of the underpaid wages.

The primary legal issue before the Court was whether HW Carpentry had contravened the *Fair Work Act 2009* (Cth) by failing to pay an employee the minimum wages and entitlements as prescribed by the relevant modern award, the *Joinery and Cabinetmaking Award 2010*. This involved determining the correct classification of the employee and the corresponding minimum rates of pay, as well as whether any other entitlements, such as overtime or allowances, had been incorrectly paid or omitted.

Judge Neville found that HW Carpentry had indeed contravened the *Fair Work Act 2009* (Cth) by underpaying the employee. The Court reasoned that the employee's duties and responsibilities placed them within a higher classification under the *Joinery and Cabinetmaking Award 2010* than they had been paid. Consequently, HW Carpentry was ordered to pay the outstanding wages to the employee and was also penalised for the contraventions.

Orders