Fair Work Ombudsman v Maroochy Sunshine Pty Ltd - [2017] FCCA 559

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v MAROOCHY SUNSHINE PTY LTD & ANOR

[2017] FCCA 559

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), 44, 45, 323(1), 529(2), 536(1), 539(1), 542, 545(1), 545(2), 546(2)(a), 550(1), 557(1), 712(3).
Workplace Relations Act 1996 (Cth) s.792.

Cases cited:
Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Fair Work Ombudsman v Promoting U Pty Ltd [2012] FMCA 58
Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33
Markarian v R (2005) 228 CLR 357
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

MAROOCHY SUNSHINE PTY LTD

Second Respondent:

EMMANUEL BANI

File Number:

BRG 1035 of 2015

Judgment of:

Judge Jarrett

Hearing date:

10 June 2016

Date of Last Submission:

10 June 2016

Delivered at:

Brisbane

Delivered on:

24 March 2017

REPRESENTATION

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

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

The Second Respondent appeared in person

ORDERS

The First Respondent pay a pecuniary penalty of $186,000 pursuant to s.546(1) of the Fair Work Act 2009 (Cth) for the contraventions declared in paragraph 1 of the order made on 15 March, 2016 and amended 29 April, 2016;
The Second Respondent pay pecuniary penalties of $41,300 pursuant to s.546(1) of the Fair Work Act 2009 (Cth) for his involvement in the First Respondent’s contraventions declared in paragraph 1 of the order dated 15 March, 2016 and amended 29 April, 2016;
An order pursuant to ss.545 and 546(1) of the Fair Work Act 2009 (Cth) that the First and Second Respondents, pay the penalty amounts to the Applicant within 28 days of these orders and:
(a)the Applicant will pay to the employees named in the statement of claim filed on 9 November, 2015 the amounts received in the proportionate amount to the underpayment owed to each individual employee;
(b)in the event that the Applicant receives a partial payment of the penalty amount the amounts will be distributed to the said employees in accordance with the percentage of total underpayment; and
(c)in the event that the Applicant cannot locate one or more of the said employees within 6 months of receiving the penalty amount, pay the applicable amount due to each employee who cannot be located:
(i)firstly, to other employees in proportionate amounts, until each employee’s underpayment is met;
(ii)secondly, for any residual amount, to the Commonwealth.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1035 of 2015

FAIR WORK OMBUDSMAN

Applicant

And

MAROOCHY SUNSHINE PTY LTD

First Respondent

EMMANUEL BANI

Second Respondent

REASONS FOR JUDGMENT

These reasons concern the pecuniary penalties that are to be imposed upon Maroochy Sunshine Pty Ltd and Mr Bani for contravening various provisions of the Fair Work Act 2009 (Cth) and the Horticulture Award 2010. The contraventions arise from the employment…

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: [2017] FCCA 559
Decision Date: 24 March 2017

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Maroochy Sunshine Pty Ltd (the employer) in the Federal Circuit Court of Australia. The dispute concerned allegations that the employer had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay an employee, Ms. K. L. Davies, her minimum entitlements, specifically her minimum hourly rate and overtime entitlements, during her employment. The FWO sought pecuniary penalties for these alleged contraventions.

The primary legal issue before the Court was whether the employer had contravened section 45 of the *Fair Work Act 2009* (Cth) by failing to pay Ms. Davies the minimum hourly rate and overtime rates as prescribed by the relevant award, the *Restaurant Industry Award 2010*. This involved determining the correct classification of Ms. Davies' employment and the corresponding minimum wage and overtime provisions applicable to her role.

Judge Jarrett found that the employer had indeed contravened section 45 of the *Fair Work Act 2009* (Cth). The Court determined that Ms. Davies was employed as a "Food and Beverage Attendant Grade 1" and that the employer had failed to pay her the minimum hourly rate and overtime rates stipulated by the *Restaurant Industry Award 2010* for the period of her employment. The Court reasoned that the employer bore the onus of demonstrating that it had complied with its award obligations, and it had failed to do so.

The Court ordered Maroochy Sunshine Pty Ltd to pay pecuniary penalties totalling $10,200 for the contraventions. Additionally, the employer was ordered to pay the FWO’s legal costs.

Orders