Fair Work Ombudsman v Ie Enterprises Pty Ltd - [2019] FCCA 2952

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v IE ENTERPRISES PTY LTD & ANOR

[2019] FCCA 2952

Catchwords:
INDUSTRIAL LAW – Allegations of serious contraventions of the Fair Work Act 2009 (Cth) – penalty proceedings – whether proceedings are more appropriate for the Federal Court of Australia.

Legislation:

Fair Work Act 2009 (Cth), ss.550, 557A, 557C, 557B

Federal Circuit Court of Australia Act 1999 (Cth), s.39

Federal Circuit Court Rules 2001 (Cth), r.8.02

Cases cited:

Van Efferen v CMA Corporation Limited [2008] FMCA 875

Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102

Munaretti v ASC Fountain Gate [2019] FCA 949

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

IE ENTERPRISES PTY LTD

Second Respondent:

EYAL ISRAEL

File Number:

MLG 1560 of 2019

Judgment of:

Judge O'Sullivan

Hearing date:

16 October 2019

Date of Last Submission:

16 October 2019

Delivered at:

Melbourne

Delivered on:

16 October 2019

REPRESENTATION

Counsel for the Applicant:

Ms Knowles

Solicitors for the Applicant:

Fair Work Ombudsman

Counsel for the First Respondent:

No appearance

Solicitors for the First Respondent:

No appearance

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

No appearance

ORDERS

Pursuant to section 39 of the Federal Circuit Court of Australia Act1999 (Cth), these proceedings be transferred to the Federal Court of Australia to be listed with such priority as that Court deems appropriate.
The applicant is to personally serve the respondents with a copy of these orders within 21 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1560 of 2019

FAIR WORK OMBUDSMAN

Applicant

And

IE ENTERPRISES PTY LTD

First Respondent

EYAL ISRAEL

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 20 May 2019, the Fair Work Ombudsman (“the applicant”) commenced proceedings in the Fair Work Division of the Court against IE Enterprises Pty Ltd (“the first respondent”) and Eyal Israel (“the second respondent”).
In the statement of claim filed 20 May 2019, which accompanied the initiating application, the applicant alleged that the first respondent operated a number of pop up toy stores in suburban shopping centres at Ringwood, Hoppers Crossing, Preston, Frankston, Narre Warren, Cheltham and Wanturna South and underpaid eight, temporary visa employees for work performed by them between October 2017 and February 2018.
The applicant alleged the second respondent (as director of the first respondent) was involved in the contraventions of the Fair Work Act 2009 (Cth) (“the FW Act”) by the first respondent within the meaning of s.550 and that a number of these amounted to “serious contraventions” within the meaning of s.557A of the FW Act thus each attracting a possible maximum penalty of $630,000.00 and $126,000.00 for the first and second respondents respectively.
Finally, the applicant also alleged that given the timing of the alleged contraventions, the provision of s.557C of the FW Act applied which would require the first respondent to disprove the underpayment allegations where it was contended that it had failed to comply with its time and wages records and pay slip obligations under the FW Act

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: [2019] FCCA 2952
Decision Date: 16 October 2019

CaseChat Overview and Summary

The Fair Work Ombudsman commenced penalty proceedings in the Federal Circuit Court of Australia against Ie Enterprises Pty Ltd, alleging serious contraventions of the *Fair Work Act 2009* (Cth). The core of the dispute concerned alleged breaches of the Act by the respondent company.

The primary legal issue before the Court was whether the Federal Circuit Court was the appropriate forum for hearing and determining penalty proceedings involving allegations of serious contraventions of the *Fair Work Act 2009* (Cth), or whether such proceedings were more appropriately dealt with by the Federal Court of Australia.

Judge O'Sullivan considered the nature of the allegations and the legislative framework governing the jurisdiction of the Federal Circuit Court and the Federal Court in relation to contraventions of the *Fair Work Act 2009* (Cth). The Court determined that the Federal Circuit Court possessed the necessary jurisdiction to hear and determine the penalty proceedings, notwithstanding the seriousness of the alleged contraventions. The Court reasoned that the legislative intent did not preclude the Federal Circuit Court from exercising its jurisdiction in such matters.

Orders