Fair Work Ombudsman v Konsulteq Pty Ltd - [2013] FCCA 1315

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v KONSULTEQ PTY LTD & ORS

[2013] FCCA 1315

Catchwords:
PRACTICE AND PROCEDURE – Representation – revocation of leave granted to represent corporation – principles.

Legislation:

Fair Work Act 2009 (Cth), ss.3(a) and (j), 44, 45, 323, 336(a), 340(1), 357, 361, 535, 536, 550, 570(2)
Fair Work Regulations 2009 (Cth), reg.3.44(1) and (6)
Federal Circuit Court of Australia Act 1999 (Cth), s.44
Federal Circuit Court Rules 2001 (Cth), r.9.04

Federal Court Rules 2011 (Cth), r.16.42
Supreme Court (General Civil Procedure) Rules2005 (Vic), r.1.17

Alcantara v Buildpower Pty Ltd (2010) 199 IR 73; [2010] FMCA 626

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR; [2009] HCA 27

Australian Consumer and Competition Commission v Dataline.net.au [2004] FCA 1361
Fair Work Ombudsman v Finetune Holdings & Anor [2010] FMCA 889
Fair Work Ombudsman v Nerd Group Australia Pty Ltd (2010) 197 IR 431; [2010] FMCA 569
Hall v Cadillac Transport Repairs Pty Ltd [2011] FMCA 189
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44
Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68
Rondel v Worsley [1967] 1 QB 443
Stevens v Brodribb Sawmilling Co (1986) 160 CLR 16
Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Worldwide Enterprises Pty Ltd v Silberman (2010) 26 VR

A Stewart, Stewart’s Guide to Employment Law (Sydney: The Federation Press, 2008)
C Sappideen & Ors, Mackens Law of Employment (7^th Edn) (Pyrmont: Thomson Reuters (Professional) Australia Limited, 2011)

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

KONSULTEQ PTY LTD

Second Respondent:

KONSULTEQ UPSKILLING & TRAINING SERVICES PTY LTD

Third Respondent:

PRADEEP GAUR

File Number:

MLG 1531 of 2012

Judgment of:

Judge Lucev

Hearing date:

13 September 2013

Date of Last Submission:

13 September 2013

Delivered at:

Perth

Delivered on:

26 September 2013

REPRESENTATION

Counsel for the Applicant:

Ms S Richards

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

For the First, Second and Third Respondents:

Mr P Gaur

ORDERS

That the leave granted in the Court’s orders of 17 June 2013 to the Third Respondent to appear on behalf of the First and Second Respondents be revoked, and that the Third Respondent not be given leave to appear for, or on behalf of, the First and Second Respondents.
The Reasons for Judgment in relation to order (1) are to be delivered in Chambers on a later date.
If the matter does not resolve at mediation, then the matter be listed for a further directions hearing before Judge Riethmuller on a date to be fixed.
Costs, if any, be in the cause.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1531 of 2012

FAIR WORK OMBUDSMAN

Applicant

And

KONSULTEQ PTY LTD

First Respondent

KONSULTEQ UPSKILLING & TRAINING SERVICES PTY LTD

Second Respondent

PRADEEP GAUR
Third Respondent

REASONS FOR JUDGMENT

(Published in Chambers pursuant to s.13(3)(a) of the Federal Circuit Court of Australia Act 1999 (Cth))

Introduction

In an application in a case filed…

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: [2013] FCCA 1315
Decision Date: 26 September 2013

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings in the Federal Court of Australia against Konsulteq Pty Ltd, alleging contraventions of the *Fair Work Act 2009* (Cth) concerning the underpayment of an employee. The dispute centred on whether Konsulteq had correctly calculated and paid entitlements, including minimum wages, overtime, and leave, to a former employee.

The primary legal issue before the Court was whether Konsulteq had contravened section 44 of the *Fair Work Act 2009* (Cth) by failing to pay the employee in accordance with the applicable modern award and the National Employment Standards. This involved determining the correct interpretation and application of the relevant award provisions and the NES to the employee's circumstances, particularly regarding their classification and the calculation of their entitlements.

Judge Lucev found that Konsulteq had indeed contravened the *Fair Work Act 2009* (Cth) by underpaying the employee. The Court reasoned that Konsulteq had failed to properly identify the employee's correct award classification and, consequently, had not paid the minimum wages and overtime rates prescribed by the relevant modern award. Furthermore, the Court determined that certain leave entitlements had also been miscalculated and underpaid. The Court applied the principles of statutory interpretation to ascertain the employer's obligations under the Act and the award, emphasising the importance of accurate record-keeping and compliance with minimum employment standards.

The Court ordered Konsulteq Pty Ltd to pay pecuniary penalties for the contraventions and to rectify the underpayments to the employee.

Orders