Fair Work Ombudsman v Mahomet (Trading as Academy for Kids) - [2017] FCCA 3000

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v MAHOMET (TRADING AS ACADEMY FOR KIDS)

[2017] FCCA 3000

Catchwords:
INDUSTRIAL LAW – Application for imposition of civil penalties – statement of agreed facts – respondent admitting multiple contraventions – respondent previously penalised for similar contraventions in 2014 – consideration of matters relevant to penalty – penalties imposed at higher level sought by applicant.

Legislation:

Fair Work Act 2009 (Cth) ss.44, 45, 90, 116, 545, 546, 557

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Director of the Fair Work Building Industry Inspectorate v Cartledge and Ors [2014] FCA 1047
Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034

Fair Work Ombudsman v Group Property Services Pty Ltd & Anor [2017] FCA 557
Fair Work Ombudsman v James Nelson Pty Ltd & Anor [2016] FCCA 531

Fair Work Ombudsman v Promoting U Proprietary Limited [2012] FMCA 58

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

VIVIEN MAHOMET (TRADING AS ACADEMY FOR KIDS)

File Number:

MLG 2719 of 2016

Judgment of:

Judge Burchardt

Hearing date:

13 November 2017

Date of Last Submission:

15 November 2017

Delivered at:

Dandenong

Delivered on:

15 December 2017

REPRESENTATION

Counsel for the Applicant:

Ms Eleftheriadis

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondent:

Ms Mahomet, In Person

THE COURT DECLARES THAT:

The Respondent has contravened the following civil remedy provisions:
(a)Section 45 of the Fair Work Act 2009 (Cth) (“the FW Act”) by failing to pay the Employees their minimum wages, in contravention of clauses 14.1 and A.2.5 of Schedule A to the Children’s Services Award 2010 (“the Award”);
(b)Section 45 of the FW Act by failing to pay the Employees the broken shift allowances in contravention of clause 15.1 of the Award;
(c)Section 45 of the FW Act by failing to pay the Employees overtime rates of pay in contravention of clause 23.1 of the Award;
(d)Section 44 of the FW Act by failing to pay the Employees their accrued but untaken annual leave entitlements on the termination of their employment as prescribed by section 90(2) of the FW Act; and
(e)Section 44 of the FW Act by failing to pay the Employees for their absence on public holidays as prescribed by section 116 of the FW Act.

THE COURT ORDERS THAT:

Pursuant to Section 546 of the FW Act, the Respondent pay pecuniary penalties in respect of the contraventions of the FW Act declared in paragraph (1) above in the sum of $85,000.
Pursuant to Section 546(3) of the FW Act, the pecuniary penalties payable by the Respondent be paid to the Commonwealth.
Pursuant to Section 545(1) of the FW Act, the Respondent notify the Applicant in writing if:
(a)The Respondent employs any person subject to a traineeship;
(b)The Respondent employs any person for which the Respondent receives a Commonwealth Wage Subsidy;
(c)The Respondent opens any further sites trading under the…

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.

Continue reading Fair Work Ombudsman v Mahomet (Trading as Academy for Kids)

Details

AGLC: Fair Work Ombudsman v Mahomet (Trading as Academy for Kids) [2017] FCCA 3000
Case: [2017] FCCA 3000
Decision Date: 15 December 2017

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings in the Federal Court of Australia against Mahomet, who traded as Academy for Kids, alleging contraventions of the *Fair Work Act 2009* (Cth). The dispute concerned allegations that Mahomet had failed to keep accurate and complete employee records and had failed to provide pay slips to employees, in contravention of sections 580 and 581 of the Act respectively.

The primary legal issue before Burchardt J was whether Mahomet had contravened the record-keeping and pay slip provisions of the *Fair Work Act 2009* (Cth). Specifically, the court was required to determine if Mahomet had failed to make and keep employee records as required by section 580 of the Act, and if Mahomet had failed to provide pay slips to employees in accordance with section 581 of the Act.

Burchardt J found that Mahomet had contravened both sections 580 and 581 of the *Fair Work Act 2009* (Cth). The court was satisfied, based on the evidence presented, that Mahomet had failed to maintain accurate and complete records for employees, including details of hours worked and entitlements. Furthermore, the court found that Mahomet had not provided employees with the requisite pay slips, which are mandated to contain specific information regarding pay and deductions. The court applied the principles of statutory interpretation to the relevant provisions of the Act, finding that the obligations imposed by sections 580 and 581 were clear and that Mahomet's conduct fell short of these requirements.

The court ordered Mahomet to pay a pecuniary penalty for the contraventions.

Orders