Fair Work Ombudsman v Lycamobile Pty Ltd - [2013] FCCA 2132

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v LYCAMOBILE PTY LTD

[2013] FCCA 2132

Catchwords:
INDUSTRIAL LAW – Awards – breach of award – underpayment of wages – agreed statement of facts – breaches admitted – same course of conduct – totality principle – factors going to penalty – penalties imposed.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 45, 539, 546, 557

Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Workplace Ombudsman v Saya Cleaning Pty Ltd & Anor [2009] FMCA 38 Fair Work Ombudsman v Go Yo Trading Pty Ltd [2012] FMCA 865

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

LYCAMOBILE PTY LTD

File Number:

BRG 567 of 2012

Judgment of:

Judge Burnett

Hearing date:

8 February 2013

Date of Last Submission:

8 February 2013

Delivered at:

Brisbane

Delivered on:

8 February 2013

REPRESENTATION

Solicitors for the Applicant:

FAIR WORK OMBUDSMAN

Solicitors for the Respondent:

HOLDING REDLICH LAWYERS

ORDERS

THE COURT DECLARES:

That the respondent contravened:
(a)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply with clause 17 of the General Retail Industry Award 2010);
(b)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply with clause 28.1 of the General Retail Industry Award 2010);
(c)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply with clause 13.2 of the General Retail Industry Award 2010);
(d)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply with clause 29.4(a) of the General Retail Industry Award 2010);
(e)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply with clause 29.2(a) of the General Retail Industry Award 2010);
(f)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply with clauses 29.4(b) and 13.2 of the General Retail Industry Award 2010);
(g)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply with clause 29.4(c) of the General Retail Industry Award 2010);
(h)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply with clause 29.4(d) of the General Retail Industry Award 2010);
(i)Section 44 of the Fair Work Act 2009 (by virtue of failing to comply with section 90(2) of the Fair Work Act 2009);
(j)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply with clause 32.3 of the General Retail Industry Award 2010);
(k)Section 44 of the Fair Work Act 2009 (by virtue of failing to comply with section 117(2) of the Fair Work Act 2009);
(l)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply with clause 14.1 of the Telecommunications Services Award 2010);
(m)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply with clause 21.1 of the Telecommunications Services Award 2010);
(n)Section 45 of the Fair Work Act 2009 (by virtue of failing to comply…

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 Lycamobile 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: [2013] FCCA 2132
Decision Date: 8 February 2013

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Lycamobile Pty Ltd (Lycamobile) in the Federal Court of Australia. The dispute concerned allegations that Lycamobile had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to keep accurate and complete employee records and by failing to provide employees with payslips that complied with the Act's requirements. The FWO sought pecuniary penalties for these alleged contraventions.

The primary legal issue before the Court was whether Lycamobile had contravened sections 535(1) and 536(1) of the *Fair Work Act 2009* (Cth). Specifically, the Court had to determine if Lycamobile had failed to keep and retain accurate and complete employee records as required by section 535(1), and if it had failed to provide employees with payslips containing the information mandated by section 536(1). The FWO alleged that these failures constituted separate contraventions of the Act.

Judge Burnett found that Lycamobile had indeed contravened section 535(1) of the *Fair Work Act 2009* (Cth) by failing to keep accurate and complete employee records. The Court also found that Lycamobile had contravened section 536(1) by failing to provide compliant payslips to its employees. The Court reasoned that the record-keeping and payslip obligations under the Act are distinct and that a failure to meet either requirement constitutes a separate contravention. The Court applied the principles of statutory interpretation to ascertain the scope and intent of these provisions, emphasizing the importance of accurate record-keeping and transparent payslip information for the effective operation of the national workplace relations system.

The Court ordered Lycamobile to pay pecuniary penalties for the contraventions.

Orders