Fair Work Ombudsman v JS Top Pty Ltd & Anor - [2017] FCCA 1689

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v JS TOP PTY LTD & ANOR

[2017] FCCA 1689

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties – contravention of Fair Work Act – underpayment of entitlements – failing to make employee records – failing to ensure records are not false and misleading – making use of employee records that are false and misleading.

Legislation:

Fair Work Act 2009, ss.45(1), 550(1), 535(1), 557(1), 557(2), 712

Fair Work Regulations 2009, regs.3.33, 3.44(1), 3.44(6)

Cases cited:

Fair Work Ombudsman v Hiyi Pty Ltd & Ors [2016] FCCA 1634
Fair Work Ombudsman v Amritsaria Four Pty Ltd & Anor [2016] FCCA 968
Fair Work Ombudsman v Mai Pty Ltd & Anor [2016] FCCA 1481

Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153

Applicant:

Fair Work Ombudsman

First Respondent:

Js Top Pty Ltd

Second Respondent:

Jim Chien Ching Chang

File Number:

BRG 296 of 2016

Judgment of:

Judge Jarrett

Hearing date:

13 September 2016

Date of Last Submission:

13 September 2016

Delivered at:

Brisbane

Delivered on:

21 July 2017

REPRESENTATION

Counsel for the Applicant:

Ms Gall

Solicitors for the Applicant:

Officer of the Fair Work Ombudsman

Solicitors for the First and Second Respondents:

Tonio Lawyers

ORDERS

THE COURT DECLARES THAT:

The First Respondent contravened:
(a)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.17 of the General Retail Industry Award 2010 by failing to pay 8 of its employees the minimum hourly wage prescribed by that Award;
(b)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.13.2 of the General Retail Industry Award 2010 and cl.A.5.4 of Schedule A of the General Retail Industry Award 2010 by failing to pay 8 of its employees the casual loading prescribed by that Award;
(c)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.29.4(b) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay the Saturday loading prescribed by that Award;
(d)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.29.4(c) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay the Sunday loading prescribed by that Award;
(e)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.30.3(a) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay the weekday shiftwork rates prescribed by that Award;
(f)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.30.3(b) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay the Saturday shiftwork rates prescribed by that Award;
(g)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of…

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: [2017] FCCA 1689
Decision Date: 21 July 2017

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard proceedings brought by the Fair Work Ombudsman against JS Top Pty Ltd and its sole director and shareholder, Jim Chien Ching Chang. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) and the *Fair Work Regulations 2009* (Cth) by JS Top Pty Ltd, with Mr Chang alleged to have been involved in these contraventions. The contraventions included the underpayment of entitlements to eight employees, failing to maintain accurate employee records, and making use of false or misleading employee records.

The court was required to determine the extent of JS Top Pty Ltd's contraventions of the *Fair Work Act* and *Fair Work Regulations*, specifically in relation to the underpayment of minimum wages, casual loadings, and shiftwork rates under the General Retail Industry Award 2010. Additionally, the court had to consider contraventions relating to the failure to create and maintain employee records, and the knowing use of false or misleading records. The court also had to determine the extent of Mr Chang's involvement in these contraventions for the purposes of s.550(1) of the Act.

The court found that JS Top Pty Ltd had contravened the *Fair Work Act* by failing to pay employees the minimum hourly wage, casual loading, and various shiftwork rates prescribed by the General Retail Industry Award 2010. Furthermore, the court determined that JS Top Pty Ltd had contravened provisions of the Act and Regulations by failing to make accurate employee records detailing remuneration and hours worked, and by knowingly using false or misleading records, including through the 7-Eleven Payroll System and in response to a Notice to Produce. Mr Chang was found to have been involved in all of these contraventions.

Consequently, the court ordered JS Top Pty Ltd to pay pecuniary penalties totalling $140,000 and Mr Chang to pay pecuniary penalties totalling $28,000. By consent, the court also made further orders requiring JS Top Pty Ltd to engage an external auditor to conduct a compliance audit of its workplace relations practices, display a workplace notice detailing employee entitlements, and to attempt to resolve any future complaints from employees.

Orders