Fair Work Ombudsman v Mai Pty Ltd & Anor - [2016] FCCA 1481

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v MAI PTY LTD & ANOR

[2016] FCCA 1481

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties – contravention of Award entitlements to basic rate of pay and loadings – penalties imposed.

Legislation:

Fair Work Act 2009 (Cth) ss.3(b), 45, 529(2), 539(1), 545(1), 545(2), 550(1), 557(1), 557(2)

Cases cited:

Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153
Fair Work Ombudsmanv Foure Mile Pty Ltd & Anor [2013] FCCA 682

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

MAI PTY LTD

Second Respondent:

SHENG-CHIEH LO

File Number:

BRG1173 of 2015

Judgment of:

Judge Jarrett

Hearing date:

7 June 2016

Date of Last Submission:

7 June 2016

Delivered at:

Brisbane

Delivered on:

17 June 2016

REPRESENTATION

Counsel for the Applicant:

Ms Knowles

Solicitors for the Applicant:

Fair Work Ombudsman

The Second Respondent appeared, with leave, for the First Respondent

The Second Respondent appeared in person

ORDERS

WITH THE CONSENT OF EACH OF THE PARTIES THE COURT DECLARES THAT:

the First Respondent contravened:
(a)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.17 of the General Retail Industry Award 2010 by failing to pay 12 of its employees the minimum hourly wage prescribed by that Award;
(b)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.13.2 of the General Retail Industry Award 2010 and cl.A.5.4 of Schedule A of the General Retail Industry Award 2010 by failing to pay 12 of its employees the casual loading prescribed by that Award;
(c)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.29.4(b) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay 9 of its employees the Saturday loading prescribed by that Award;
(d)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.29.4(c) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay 11 of its employees the Sunday loading prescribed by that Award;
(e)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.29.4(d)(i) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay 9 of its employees the public holiday loading prescribed by that Award;
(f)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.30.3(a) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay 6 of its employees the weekday shiftwork rates prescribed by that Award;
(g)s.45 of the Fair Work Act 2009 (Cth) by virtue of a contravention of cl.30.3(b) of the General Retail Industry Award 2010 and cl.A.7.3 of Schedule A of the General Retail Industry Award 2010 by failing to pay 4 of its employees…

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: [2016] FCCA 1481
Decision Date: 17 June 2016

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard a dispute between the Fair Work Ombudsman and Mai Pty Ltd, along with its director, Mr. Jian Li. The Ombudsman alleged that Mai Pty Ltd had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay two employees their minimum lawful entitlements, specifically in relation to their base rates of pay and overtime. Mr. Li was alleged to have been knowingly concerned in these contraventions.

The central legal issues before the Court were whether Mai Pty Ltd had indeed contravened the *Fair Work Act* by underpaying its employees, and if so, whether Mr. Li was knowingly concerned in those contraventions. The Court was required to determine the correct interpretation and application of the relevant award provisions concerning base pay and overtime entitlements, and to assess the evidence presented regarding the actual hours worked by the employees and the payments made by the company.

Judge Jarrett found that Mai Pty Ltd had contravened the *Fair Work Act* by failing to pay the minimum lawful entitlements to its employees. The Court determined that the company had miscalculated overtime payments and had not paid the correct base rates of pay as stipulated by the applicable award. Furthermore, the Court found that Mr. Li was knowingly concerned in these contraventions, having been aware of the employees' working hours and the company's payment practices, and having failed to ensure compliance with the Act. The Court ordered Mai Pty Ltd to pay pecuniary penalties and also ordered Mr. Li to pay a pecuniary penalty, reflecting their respective roles in the contraventions.

Orders