Fair Work Ombudsman v Land Choice Pty Ltd

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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
Australian Competition and Consumer Commission v Australian Safeway Store Pty Ltd (1997) 145 ALR 36
Australian Ophthalmic Supplies Pty Limited v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8
Cotis v Macpherson (2007) 169 IR 30; [2007] FMCA 2060
Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364
Dennington v Pee Cee Pty Ltd [2008] FMCA 79
Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Longmire v Murray Clarke Enterprises Pty Ltd & Anor [2008] FMCA 1028
Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mason v Harrington Corporation Pty Limited [2007] FMCA 7
McIver v Healey [2008] FCA 425
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Ponzio v B & P Caelli Constructions Pty Ltd and Others (2007) 158 FCR 543; [2007] FCAFC 65
Printing and Kindred Industries Union and Others v Vista Paper Products Pty Ltd and Another (1994) 127 ALR 673
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16
Victoria University of Technology v Australian Education Union (1999) 91 IR 96; [1999] FCA 1065
Workplace Ombudsman v Saya Cleaning Pty Ltd & Anor [2009] FMCA 38
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:

  1. 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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Details
Case
[2009] FMCA 1255
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman brought proceedings against Land Choice Pty Ltd and two individuals for various contraventions of employment laws, including sections 900, 182, 234, 235, 246, and specific clauses within the National Performance Standards Agreement (NAPSA) and regulations. The primary focus was the employment conditions of Ms Tiek Leng Lau. The court was tasked with determining whether the respondents contravened the specified sections and clauses of the Fair Work Act 2009 and NAPSA, and if so, what penalties should be imposed.

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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