FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v LAND CHOICE PTY LTD & ANOR | [2009] FMCA 1255 |
| INDUSTRIAL LAW – Civil penalty proceedings – where contraventions of Workplace Relations Act and Regulations admitted – factors for consideration. |
| Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Property, Stock and Business Agents Act 2002 (NSW), s.11 Workplace Relations Act 1996 (Cth), ss.6, 166D, 167. 171, 182, 208, 232, 234, 235, 245, 246, 318, 717, 718, 719, 722, 727, 728, 836, 846, 900, 904 Workplace Relations Regulations 2006 (Cth), regs.2.14.3, 2.14.4, 2.14.5, 2.19.4, 2.19.11 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | LAND CHOICE PTY LTD (ACN 102 352 385) |
| Second Respondent: | SUGIHARTO SUGIHARTO |
| File Number: | SYG1465 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 10 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms P Lowson |
| Solicitors for the Applicant: | Fisher Cartwright Berriman |
| Counsel for the Respondents: | Mr P Cleary |
| Solicitors for the Respondents: | Pryor Tzannes & Wallis Solicitors |
DECLARATIONS AND ORDERS
THE COURT DECLARES THAT:
The first respondent contravened s.900(1) of the Workplace Relations Act 1996 (Cth) (“the Act”) in relation to the employment of Ms Tiek Leng Lau in that it misrepresented the contract under which she was to perform work as a…
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- Case
- [2009] FMCA 1255
- Decision Date
CaseChat Overview and Summary
The court identified multiple breaches by the respondents, including failure to pay Ms Tiek Leng Lau the minimum wage, not providing the correct entitlements, and not providing required records. The court examined the evidence and the arguments presented by both parties to ascertain the nature and extent of the contraventions. The respondents argued that the contraventions were due to administrative errors and not willful misconduct. However, the court found that the contraventions were deliberate and systemic, warranting penalties under the Fair Work Act.
The court imposed various penalties on the respondents, with higher penalties for the company due to its larger role in the contraventions. The penalties were calculated based on the severity and frequency of the breaches. The court also ordered that the penalties be paid to the Consolidated Revenue of the Commonwealth by specific dates. The decision underscored the importance of compliance with employment laws and the significant consequences for non-compliance.
Orders
Orders of the court
1.
Pursuant to s.904(1) of the Act a penalty of $8,000 be imposed on the first respondent in respect of s.900(1) of the Act.
2.
Pursuant to s.904(1) of the Act a penalty of $1,600 be imposed on the second respondent in respect of his contravention of s.900(1) of the Act in relation to the employment of Ms Tiek Leng Lau.
3.
Pursuant to s.719(1) of the Act a penalty of $8,000 be imposed on the first respondent in respect of its contravention of s.182(1) of the Act in relation to the employment of Ms Tiek Leng Lau.
4.
Pursuant to s.719(1) of the Act a penalty of $1,600 be imposed on the second respondent in respect of his contravention of s.182(1) of the Act in relation to the employment of Ms Tiek Leng Lau.
5.
Pursuant to s.719(1) of the Act a penalty of $1,600 be imposed on the first respondent for its contravention of s.234(2) of the Act in relation to the employment of Ms Tiek Leng Lau.
6.
Pursuant to s.719(1) of the Act a penalty of $320 be imposed on the second respondent in respect of his contravention of s.234(2) of the Act in relation to the employment of Ms Tiek Leng Lau.
7.
Pursuant to s.719(1) of the Act a penalty of $1,600 be imposed on the first respondent in respect of its contravention of s.235(2) of the Act in relation to the employment of Ms Tiek Leng Lau.
8.
Pursuant to s.719(1) of the Act a penalty of $320 be imposed on the second respondent in respect of his contravention of s.235(2) of the Act in relation to the employment of Ms Tiek Leng Lau.
9.
Pursuant to s.719(1) of the Act a penalty of $1,600 be imposed on the first respondent in respect of its contravention of s.246(4) of the Act in relation to the employment of Ms Tiek Leng Lau.
10.
Pursuant to s.719(1) of the Act a penalty of $320 be imposed on the second respondent in respect of his contravention of s.246(4) of the Act in relation to the employment of Ms Tiek Leng Lau.
11.
Pursuant to s.719(1) of the Act a penalty of $1,600 be imposed on the first respondent in respect of its contravention of clause 4(c) of the NAPSA in relation to the employment of Ms Tiek Leng Lau.
12.
Pursuant to s.719(1) of the Act a penalty of $320 be imposed on the second respondent in respect of his contravention of clause 4(c) of the NAPSA in relation to the employment of Ms Tiek Leng Lau.
13.
Pursuant to s.719(1) of the Act a penalty of $1,600 be imposed on the first respondent in respect of its contravention of clause 31(b)(ii) of the NAPSA in relation to the employment of Ms Tiek Leng Lau.
14.
Pursuant to s.719(1) of the Act a penalty of $320 be imposed on the second respondent in respect of his contravention of clause 31(b)(ii) of the NAPSA in relation to the employment of Ms Tiek Leng Lau.
15.
Pursuant to s.719(1) of the Act a penalty of $200 be imposed on the first respondent in respect of its contravention of clause 33(h)(i) of the NAPSA in relation to the employment of Ms Tiek Leng Lau.
16.
Pursuant to s.719(1) of the Act a penalty of $40 be imposed on the second respondent in respect of his contravention of clause 33(h)(i) of the NAPSA in relation to the employment of Ms Tiek Leng Lau.
17.
Pursuant to reg.2.14.4 of the Regulations a penalty of $400 be imposed on the first respondent in respect of its contravention of reg.2.19.11(1) of the Regulations in relation to the employment of Ms Tiek Leng Lau.
18.
No penalty be imposed on the first respondent in respect of its contraventions of regs.2.19.11(3) and 2.19.11(4).
19.
Payment of the penalties imposed on the first respondent be made to the Consolidated Revenue of the Commonwealth on or before 17 December 2010.
20.
Payment of the penalties imposed on the second respondent be made to the Consolidated Revenue of the Commonwealth on or before 17 June 2010.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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