Fair Work Ombudsman v Kang - [2017] FCCA 1010

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v KANG

[2017] FCCA 1010

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties.

Legislation:

Fair Work Act 2009, ss.3, 45, 90(2), 535(1), 536(1), 550, 557, 682

Fair Work Regulations 2009, rr.3.36, 3.44

Restaurant Industry Award 2010, cls.20.1, 33.2, 34.1, 35.2

Cases cited:
Fair Work Ombudsman v ACN 052 182 180 Pty Ltd & Anor [2013] FCCA 688
Fair Work Ombudsman v ECFF Pty Ltd [2014] 2996
Fair Work Ombudsman v EJ Group International Pty Ltd & Anor [2017] FCCA 997
Fair Work Ombudsman v Mamak Pty Ltd & Ors [2016] FCCA 2104
Fair Work Ombudsman v Soleimani & Anor [2014] FCCA 2380
Fair Work Ombudsman v South Jin Pty Limited (No.2) [2016] FCA 832
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

DAI IL KANG

File Number:

BRG 1009 of 2016

Judgment of:

Judge Jarrett

Hearing date:

12 May 2017

Date of Last Submission:

12 May 2017

Delivered at:

Brisbane

Delivered on:

18 May 2017

REPRESENTATION

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Solicitors for the Respondents:

So Dong Lawyers

ORDERS

BY CONSENT THE COURT DECLARES THAT:

From on and after 22 July 2015, the respondent was involved, within the meaning of s.550(1) of the Fair Work Act 2009 (Cth), in the contraventions by Ballina One Sushi Pty Ltd of:
(a)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the minimum rate of pay prescribed by cl.20.1 of the Restaurant Industry Award 2010;
(b)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the minimum Saturday penalty prescribed by cl.34.1 of the Restaurant Industry Award 2010;
(c)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the minimum Sunday penalty prescribed by cl.34.1 of the Restaurant Industry Award 2010;
(d)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the minimum overtime rate of pay for overtime worked on Monday to Friday prescribed by cl.33.2(a) of the Restaurant Industry Award 2010;
(e)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the minimum overtime rate of pay for overtime worked on a Saturday prescribed by cl.33.2(b) of the Restaurant Industry Award 2010;
(f)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the minimum overtime rate of pay for overtime worked on a Sunday prescribed by cl.33.2(c) of the Restaurant Industry Award 2010;
(g)s.45 of the Fair Work Act 2009 (Cth), by failing to pay the required minimum annual leave loading prescribed by cl.35.2(b) of the Restaurant Industry Award 2010;
(h)s.44(1) of the Fair Work Act 2009 (Cth), by failing to pay annual leave on termination of employment as required by s.90(2) of the Fair Work Act 2009 (Cth);
(i)s.535(1) of the Fair Work Act 2009 (Cth), by failing to make and…

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.

Continue reading Fair Work Ombudsman v Kang

Details

AGLC: Fair Work Ombudsman v Kang [2017] FCCA 1010
Case: [2017] FCCA 1010
Decision Date: 18 May 2017

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Mr. Kang, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act) concerning the underpayment of an employee. The dispute centred on whether Mr. Kang was an employer within the meaning of the Act and, if so, whether he had failed to pay the employee minimum lawful entitlements, including wages and superannuation. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was to determine whether Mr. Kang was an employer of the individual in question, notwithstanding the characterisation of their relationship as one of independent contracting. This involved an assessment of the true nature of the relationship, considering factors such as control, integration, provision of tools and equipment, and the opportunity for profit or loss. A secondary issue was, if Mr. Kang was found to be an employer, whether he had contravened the Act by failing to pay the employee minimum wages and superannuation contributions as required by the applicable award.

Judge Jarrett found that the relationship between Mr. Kang and the individual was one of employment, not independent contracting. The Court applied the multifactorial test for determining employment status, noting that while the individual performed tasks that could be characteristic of an independent contractor, the overarching reality of the arrangement pointed towards employment. Key factors included the degree of control Mr. Kang exercised over the manner in which the work was performed, the integration of the individual into Mr. Kang's business operations, and the lack of genuine opportunity for the individual to profit or incur a loss independently. Consequently, Mr. Kang was found to be an employer and had contravened the Act by failing to meet his obligations regarding minimum wages and superannuation.

Orders