Fair Work Ombudsman v Jackson

[2016] FCCA 476

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v JACKSON [2016] FCCA 476

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 – failure to pay entitlements – no appearance by or on behalf of respondent – undefended hearing on basis of statement of agreed facts.

Legislation:

Evidence Act 1995 (Cth)

Fair Work Act 2009 (Cth)

Workplace Relations Act 1996 (Cth)

Applicant: FAIR WORK OMBUDSMAN

Respondent: HAROLD WILLIAM JACKSON

File Number: LNG 27 of 2014

Judgment of: Judge McGuire

Hearing date: 25 January 2016

Date of Last Submission: 25 January 2016

Delivered at: Hobart

Delivered on: 25 January 2016

REPRESENTATION

Counsel for the Applicant: Ms Knowles

Solicitors for the Applicant: Fair Work Ombudsman

Counsel for the Respondent: Self Represented - No appearance

ORDERS

IT IS DECLARED THAT:

1. The Respondent HAROLD WILLIAM JACKSON contravened:

   (a)Section 293 of the Fair Work Act 2009 (Cth) (“the Act”) for failure to pay minimum wages to GRAEME ALEXANDER FRASER in the amount of $7,542.54 and VANESSA MANCINI in the amount of $3,012.19 pursuant to clauses 4.1 and 8.2 of the National Minimum Wage Order 2015;

   (b)Section 293 of the Act for failure to pay casual loading to GRAEME ALEXANDER FRASER in the amount of $2,150.64 and to VANESSA MANCINI in the amount of $802.00 pursuant to clause 5.1 of the National Minimum Wage Order 2015;

   (c)Section 45 of the Act for failure to pay minimum wages to TOMOYUKI WATARI in the amount of $6,878.48 and to MADOKA MAKINO in the amount of $4,331.32 and to KEELIN ELMHIRST in the amount of $400.22 pursuant to clause 17 of the General Retail Industry Award 2010;

   (d)Section 45 of the Act for failure to pay casual loading to TOMOYUKI WATARI in the amount of $2,876.16 and to MADOKA MAKINO in the amount of $1,542.94 and KEELIN ELMHIRST in the amount of $167.99 pursuant to 13.2 of the General Retail Industry Award 2010;

   (e)Section 45 of the Act for failure to pay penalties for Saturday work to TOMOYUKI WATARI in the amount of $3,838.65 and to MADOKA MAKINO in the amount of $1,825.13 and to KEELIN ELMHIRST in the amount of $211.95 pursuant to clause 29.4b of the General Retail Industry Award 2010; and

(f)Section 45 of the Act for failure to pay penalties for Sunday work to TOMOYUKI WATARI in the amount of $4,661.86 and to MADOKA MAKINO in the amount of $1,313.20 and to KEELIN ELMHIRST in the amount of $246.23 pursuant to clause 29.4(c) of the General Retail Industry Award 2010; and

(g)Section 45 of the Act for failure to pay penalties for public holiday work to TOMOYUKI WATARI in the amount of $842.49 and to MADOKA MAKINO in the amount of $341.55 pursuant to clause 29.4(d)(i) of the General Retail Industry Award 2010; and

(h)Section 45 of the Act for failure to observe the minimum daily engagement for KEELIN ELMHIRST pursuant to clause 13.4 of the General Retail Industry Award 2010; and

(i)Section 535(1) of the Fair Work Act 2009 (Cth) by failing to make or keep employment records as required by sub regulation 3.33 sub paragraph 2 of the Fair Work Regulations 2009 (Cth) in respect of the employee of the complainant employees; and

(j)Section 536 of the Act by failing to provide pay slips to the complainant employees.

THE COURT ORDERS THAT:

1. Pursuant to s545(1) of the Fair Work Act 2009 (Cth) the respondent pay the outstanding amount of $42,985.54 within 28 days of the date of these orders to the applicant via the Consolidated Revenue Fund of the Commonwealth.

   (a)Whereupon the applicant will within 14 days of receipt of the payment, pay to the complainant employees as follows:

(i)$9,693.18 to GRAEME ALEXANDER FRASER;

(ii)$3,814.19 to VANESSA MANCINI;

(iii)$19,097.64 to TOMOYUKI WATARI;

(iv)$9,354.14 to MADOKA MAKINO; and

(v)$1,026.39 to KEELIN ELMHIRST.

(b)In the event that the applicant cannot locate any of the complainant employees, then to pay the outstanding amount due to any of the said employees who cannot be located to the Consolidated Revenue Fund of the Commonwealth within a further seven days.

1. The respondent pay interest pursuant to section 547 of the Fair Work Act 2009 (Cth) in respect to the amounts referred to in paragraph 2(a) above.

2. The applications be otherwise listed for hearing in respect of penalties pursuant to section 546(1) of the Fair Work Act 2009 (Cth) on Friday, 11 March 2016 at 10.00 am at the Federal Circuit Court at the Hobart Registry.

3. The affidavits of GRAEME ALEXANDER FRASER, VANESSA MANCINI, MADOKA MAKINO, KEELIN ELMHIRST and KATE MCIVER accepted as exhibits and read into evidence this day may be relied upon and read into evidence for the purposes of the penalty hearing and the deponents not be required to attend for cross examination unless notice is given to the applicant in writing not later than 14 days from the date of these orders and if so then leave be given to the deponents or any of them to give evidence by telephone.

4. The applicant file and serve any written submissions on which they intend to rely in respect of the penalty phase of the proceedings within 14 days of the date of these orders.

5. The respondent file and serve any written submissions on which he intends to rely in respect of the penalty phase of the proceedings within 14 days of service of the applicant’s submissions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

LNG 27 of 2014

FAIR WORK OMBUDSMAN

Applicant

And

HAROLD WILLIAM JACKSON

Respondent

REASONS FOR JUDGMENT

1. These are proceedings seeking orders pursuant to the Fair Work Act 2009 on an application made 25 September 2014 in respect of five complainants, being Graham Fraser, Vanessa Manchini, Tomuku Watari, Madoko Makino and Keelan Elmhurst.

2. This matter was listed for a four or five day hearing to commence today, 25 January 2016. The matter was called shortly after 10 am and there was no appearance by or on behalf of the respondent. Further, the Court file showed that the solicitors on the record for the respondent, Mr Jackson, had filed a notice of intention of ceasing to act in the last week and have notified the applicant’s solicitors accordingly.

3. The respondent himself gave informal notice that he did not intend to appear at the hearing, so the fact that he did not make an appearance, was not unexpected.

4. The matter proceeded undefended although the Court has the benefit of a Statement of Agreed Facts signed by the respondent on 21 January 2016 and was taken as an exhibit marked A1 in these proceedings.

5. In addition, four of the aforementioned complainants are in attendance at Court and amended affidavits were tendered as exhibits and have now been read into evidence from Ms Elmhurst, Ms Makino, Mr Fraser and Ms Manchini. Also read into evidence is an affidavit of Kate Elizabeth McIver, who is an employee of the Commonwealth and the Workplace Ombudsman’s Office. Her affidavit, sworn 31 August 2015, is read into evidence and relates in particular to the complainant, Mr Watari, whose affidavit is also read into evidence, on the basis of hearsay notices previously filed.

6. On the basis of the Statement of Agreed Facts, I do not intend to go into the background of particulars as they are set out in some detail in respect of the employment and alleged liability of the employer and respondent, Mr Jackson, in respect of each of the complainants.

7. Pursuant to section 191 of the Evidence Act 1995, I accept the statement of agreed facts and I am prepared to make the orders and the declarations sought.

8. Also read into evidence will be a document entitled Amended Applicant’s Outline of Liability Submissions, which is now taken as an exhibit marked A7 and it is read into evidence. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 31 March 2016