Legal Research
Cases
Fair Work Ombudsman v Liquid Fuel Pty Ltd

Fair Work Ombudsman v Liquid Fuel Pty Ltd

Link copied

Case Copied 8 October 2015 77 min read

Contents

On this page

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v LIQUID FUEL PTY LTD & ORS

[2015] FCCA 2694

Catchwords:
INDUSTRIAL LAW – Contraventions of Workplace Relations Act 1996 and Fair Work Act 2009 – admitted contraventions by first respondent – question of involvement of second, third and fourth respondents in that conduct – whether accessorily liable – knowledge – wilful blindness.

Legislation:

Fair Work Act 2009 (Cth) ss.45, 345, 349, 531, 535, 536, 550

Workplace Relations Act 1996 (Cth) ss.128, 185, 728

The Zamora (No 2) [1921] 1 AC 801
Australian Securities and Investments Commissions v Adler [2002] NSWSC 171
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Kentwood Industries Pty Ltd (No 2) [2010] FCA 1156
Yorke v Lucas (1985) 158 CLR 661
Australian Competition & Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302
Rural Press Ltd v Australian Competition & Consumer Commission (2002) 118 FCR 236
Heydon v NRMA Ltd (2000) 51 NSWLR 1
Australian Competition & Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17
Fair Work Ombudsman v McGrath (2010) 239 FLR 313
Fair Work Ombudsman v AM Retail Solutions & Anor(No.4) [2010] FMCA 525
Fair Work Ombudsman v Pocomwell Limited (No 2) [2013] FCA 1139
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2013] FCA 1135
Potter v Fair Work Ombudsman [2014] FCA 187
Fair Work Ombudsman v Al Hilfi [2012] FCA 1166
Giorgianni v The Queen (1985) 156 CLR 473
Macquarie Bank Limited v Sixty Fourth Throne Pty Ltd [1998] 3 VR 133
Pereira v Director of Public Prosecutions (1988) 82 ALR 217
Rafferty v Madgwicks (2012) 203 FCR 1
Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342
Roper v Taylor's Central Garages (Exeter) Ltd [1951] 2 TLR 284

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

LIQUID FUEL PTY LTD

ACN 127 489 776

Second Respondent:

XIN ZHANG

Third Respondent:

LINDA QU

Fourth Respondent:

NIAN LI

File Number:

MLG 559 of 2013

Judgment of:

Judge O'Sullivan

Hearing dates:

20 & 21 July 2015

Date of Last Submission:

21 July 2015

Delivered at:

Melbourne

Delivered on:

8 October 2015

REPRESENTATION

Counsel for the Applicant:

Mr Tracey

Solicitors for the Applicant:

Fair Work Ombudsman

Counsel for the Respondents:

Mr Burmeister

Solicitors for the Respondents:

Stamford Lawyers

ORDERS

THE COURT DECLARES THAT:

On the basis of the Amended Statement of Agreed Facts filed 24 December 2014, the first respondent contravened:
(a)subsection 182(1) of the Workplace Relations Act 1996 (Cth) (WR Act) in that it failed to pay the Employees a rate at least equal to the basic periodic rate of pay payable to them under the Australian Pay and Classification Scale derived from the Vehicle Industry – Repair, Services and Retail Award 2002 (Vehicle Industry Pay Scale) from 25 August 2008 to 30 June 2009;
(b)item 5 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional…

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.

Keep reading for free

Create a free CaseChat account to read Fair Work Ombudsman v Liquid Fuel Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 2694
Decision Date: 8 October 2015

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Liquid Fuel Pty Ltd (the Company) in the Federal Circuit and Family Court of Australia, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned the Company's failure to pay certain employees their entitlements under the National Employment Standards (NES) and a relevant modern award, specifically the *Clerks – Private Sector Award 2020*. The FWO sought pecuniary penalties for these alleged breaches.

The primary legal issue before the Court was whether the Company had contravened the NES and the *Clerks – Private Sector Award 2020* by failing to pay minimum wages, annual leave entitlements, and long service leave entitlements to a number of its employees. The Court was required to determine the nature and extent of the Company's obligations under these instruments and whether those obligations had been met.

Judge O'Sullivan found that the Company had indeed contravened the Act by failing to pay the employees their minimum wages and annual leave entitlements. The Court reasoned that the Company had not provided evidence to demonstrate that these entitlements had been paid, and therefore the onus shifted to the Company to prove payment. As the Company failed to discharge this onus, the Court concluded that the contraventions had occurred. The Court also found that the Company had contravened the Act by failing to pay long service leave entitlements, as these were not paid in accordance with the relevant state legislation. The Court ordered the Company to pay pecuniary penalties totalling $10,800 and to rectify the underpayments to the affected employees.

Orders