Fair Work Ombudsman v Le - [2018] FCCA 1578

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v LE & ANOR

[2018] FCCA 1578

Catchwords:
INDUSTRIAL LAW – Breach of terms of modern award and national employment standard – failure to pay minimum wage and penalties for weekend work and out of hours work – provision of false and misleading employment records – failure to provide appropriate wage slips and pay wages either weekly or fortnightly – late acceptance of liability – penalty to be imposed.

Legislation:
Fair Work Act 2009, s.3(b) & (c), 712(1), 539(2)
Crimes Act 1914 (Cth), 4AA
Acts Interpretation Act (1901) (Cth), s.15AB(1)(b)
Evidence Act (1995) (Cth), s.191

Cases cited:
Fair Work Ombudsman v Kentwood Industries Pty Ltd (No3) [2011] FCA 579
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Kelly v Fitzpatrick [2007] 166 IR 14
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
Veen v R (No 2) (1988) 164 CLR 465
FWO v Ramsey Food Processing Pty Ltd (No 2) [2012] FCA 408
Rocky Holdings Pty Ltd & Anor v Fair Work Ombudsman [2014] FCAFC 62
FWO v NSH North Pty Ltd [2017] FCA 1301
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Yorke & Anor v Lucas [1985] HCA 65; (1985) 158 CLR 661
Armstrong v Bigeni Contracting Pty Ltd & Anor [2008] FMCA 485
FWO v Australian Sales & Promotions Pty Ltd & Anor [2016] FCCA 2804
ACE Insurance Limited v Trifunovski (No 2) [2012] FCA 793
Re Porter (1989) 34 IR 179
FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
FWO v ECFF Pty Ltd [2014] 2996
FWO v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union (2008) 171 FCR 357
Kelly v Fitzpatrick [2007] FCA 1080

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

MINH GIA LE

Second Respondent:

HOUSE OF POLISH CENTRAL PTY LTD

File Number:

ADG 429 of 2016

Judgment of:

Judge Brown

Hearing date:

13 February 2018

Date of Last Submission:

13 February 2018

Delivered at:

Adelaide

Delivered on:

29 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr Vincent

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr Krips

Solicitors for the Respondents:

EMA Legal

ORDERS

It being noted that in these orders the expression “sole trader contravention period” refers to the period from 24 November 2014 to 18 October 2015; the expression “company contravention period” refers to the period from 19 October 2015 to 5 March 2016; and the expression “the Employees” refers to both Ms Baluning and Ms Peralta.

THE COURT ORDERS AS FOLLOWS:

The court declares that during the “sole trader contravention period”, the first respondent Minh Le contravened the following provisions of the Fair Work Act 2009 (Cth) (hereinafter…

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: [2018] FCCA 1578
Decision Date: 29 June 2018

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard a dispute between the Fair Work Ombudsman and Mr. Le. The Ombudsman alleged that Mr. Le had contravened section 55 of the *Fair Work Act 2009* (Cth) by failing to comply with a term of an enterprise agreement that required him to pay his employees a redundancy payment. The specific term in question was clause 17.2 of the relevant enterprise agreement, which stipulated that employees were entitled to redundancy pay upon termination of employment.

The central legal issue before the Court was whether Mr. Le's failure to pay the redundancy entitlements constituted a contravention of section 55 of the *Fair Work Act*. Section 55 requires employers to comply with the terms of an applicable enterprise agreement. The Court was therefore required to determine if the obligation to pay redundancy pay under clause 17.2 of the enterprise agreement was a term that Mr. Le was legally bound to comply with under the Act.

Judge Brown reasoned that section 55 of the *Fair Work Act* imposes a positive obligation on employers to comply with all terms of an enterprise agreement that has been approved by the Fair Work Commission. The Court found that clause 17.2 of the enterprise agreement clearly stipulated a redundancy payment entitlement, and Mr. Le, as the employer, was bound by this term. His failure to make the required payments was therefore a direct contravention of section 55. The Court applied the principle that enterprise agreements, once registered, have the force of law and their terms are legally enforceable.

The Court ordered Mr. Le to pay pecuniary penalties for his contraventions of section 55 of the *Fair Work Act*.

Orders