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Fair Work Ombudsman v Jay Group Services Pty Ltd & Ors

Fair Work Ombudsman v Jay Group Services Pty Ltd & Ors

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Case Copied 19 December 2014 74 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v JAY GROUP SERVICES PTY LTD & ORS [2014] FCCA 2869

Catchwords:
INDUSTRIAL LAW – Determination of penalties to be imposed in relation to admitted or undisputed contraventions of Fair Work Act 2009 (Cth) – totality principle – non-payment and underpayment of employees – agreed statements of facts prepared by most respondents – relevant principles.

Legislation:

Fair Work Act 2009, ss.45, 535, 536, 546, 550(2), 557

Australasian Meat Industry Employees Union v Meneling Station Pty Ltd (1987) 16 IR 245
Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Barbaro v R (2014) 305 ALR 323
Blandy v Coverdale NT Pty Ltd (ACN 102 611 423) (2008) 178 IR 150

Cousins v Merringtons Pty Ltd (No.2) [2008] VSC 340
Cussen & Ors v Sultan & Ors [2009] NSWSC 1114
Deputy Commissioner of Taxation (Superannuation) v Graham Family Superannuation Pty Ltd [2014] FCA 1101
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2014) 140 ALD 337

Director of the Fair Work Building Industry Inspectorate v Luka Tippers & Excavation Pty Ltd & Anor [2014] FCCA 1459
DP World Sydney Ltd v Maritime Union of Australia (No.2) [2014] FCA 596
Fair Work Ombudsman v ACN 146 435 118 Pty Ltd (No.2) [2013] FCCA 1270
Fair Work Ombudsman v Al Hilfi [2012] FCA 1166
Fair Work Ombudsman v Bento Kings Meadows Pty Ltd [2013] FCCA 977
Fair Work Ombudsman v Contracting Plus Pty Ltd & Anor (2011) 205 IR 281
Fair Work Ombudsman v Cuts Only The Original Barber Pty Ltd & Ors [2014] FCCA 2381
Fair Work Ombudsman v Happy Cabby Pty Ltd & Anor [2013] FCCA 397

Fair Work Ombudsmanv Promoting U Pty Ltd & Anor [2012] FMCA 58

Fair Work Ombudsman v Ross Geri Pty Ltd & Ors [2014] FCCA 959
Fair Work Ombudsman v South Jin Pty Ltd & Ors [2013] FCCA 1057
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq.) [2012] FCA 479
Fair Work Ombudsman v Tuscan Landscape Company Pty Ltd & Ors [2014] FCCA 1421
Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216
Ibrahim v Pham [2007] NSWCA 215
Inspector Trundle (Workplace Ombudsman) v M & K Angelopoulos Pty Ltd [2009] FMCA 37
Karl Suleman Enterprizes Pty Ltd (in liquidation) v Philip Viet Dzung Pham [2012] NSWSC 645
Kelly v Fitzpatrick (2007) 166 IR 14
Lang v Xidis Pty Ltd t/as Effective Supermarket Services & Anor [2008] FMCA 1009
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant and Bar [2007] FMCA 7
McIver v Healey [2008] FCA 425
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Mornington Inn Pty Ltd (ACN 116 830 703) v Jordan (2008) 168 FCR 383
NW…

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: [2014] FCCA 2869
Decision Date: 19 December 2014

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Jay Group Services Pty Ltd, Mr. Jay, and Ms. Jay, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned allegations that Jay Group Services Pty Ltd had failed to pay minimum entitlements to its employees, and that Mr. and Ms. Jay were knowingly concerned in these contraventions. The matter was heard in the Federal Court of Australia.

The primary legal issues before the Court were whether Jay Group Services Pty Ltd had contravened specific provisions of the Act by failing to pay minimum wages and entitlements to its employees, and whether Mr. and Ms. Jay were knowingly concerned in, or party to, these contraventions. The FWO sought declarations of contravention, pecuniary penalties, and orders for the repayment of outstanding entitlements.

Lloyd-Jones J found that Jay Group Services Pty Ltd had contravened the Act by failing to pay minimum wages and entitlements to its employees. His Honour also found that Mr. and Ms. Jay were knowingly concerned in, and party to, these contraventions. The Court applied the principles of statutory interpretation to the relevant provisions of the Act, including those relating to minimum entitlements and the liability of individuals involved in corporate contraventions. The Court considered the evidence presented regarding the knowledge and involvement of Mr. and Ms. Jay in the company's failure to meet its obligations.

The Court ordered Jay Group Services Pty Ltd to pay pecuniary penalties and to rectify the underpayments to its employees. Mr. and Ms. Jay were also ordered to pay pecuniary penalties for their involvement in the contraventions.

Orders