Fair Work Ombudsman v Mhoney Pty Ltd - [2017] FCCA 811

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v MHONEY PTY LTD & ANOR

[2017] FCCA 811

Catchwords:
INDUSTRIAL LAW – Application for imposition of penalties arising upon contraventions of the Fair Work Act and the relevant award following earlier liability hearing – consideration of matters relevant to penalty – respondents’ serious contraventions – applicant’s proposed range of penalties accepted – whether earlier orders should be varied pursuant to the slip rule to make second respondent jointly and severally liable for part of unrepaid wages.

Legislation:

Fair Work Act 2009, ss.44, 45, 321, 323, 350, 531, 536, 546, 550, 557, 712

Federal Circuit Court Rules 2001, r.16.05

A & L Silvestri Proprietary Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466
ACCC v Leahy Petroleum Limited (No.2) [2005] FCA 254
Arnett v Holloway (1960) VR 22
Australian Ophthalmic Supplies Proprietary Limited v McAlary-Smith [2008] FCAFC 8
Cawood v Infraworth Proprietary Limited (1992) Qd R 114
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors [2015] HCA 46
Construction, Forestry, Mining and Energy Union v Cahill (2010) FCAFC 39, (2010) 269 ALR 1
Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445
Fair Work Ombudsman v Promoting U Proprietary Limited & Anor [2012] FMCA 58
Fair Work Ombudsman v Safecorp Security Group Pty Ltd & Anor (2017) FCCA 348
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258
Jordan v Mornington Inn Proprietary Limited [2007] FCA 1384
L. Shaddock and Associates Pty Ltd v Parramatta City Council (No.2) (1982) 151 CLR 590
Mornington Inn Proprietary Limited v Jordan [2008] FCAFC 70
Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

MHONEY PTY LTD

Second Respondent:

ABDULRAHMAN TALEB

File Number:

MLG 1223 of 2015

Judgment of:

Judge Burchardt

Hearing date:

24 March 2017

Date of Last Submission:

24 March 2017

Delivered at:

Melbourne

Delivered on:

28 April 2017

REPRESENTATION

Counsel for the Applicant:

Ms Knowles

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondent:

Ms Line

Solicitors for the Respondent:

Souki Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1223 of 2015

FAIR WORK OMBUDSMAN

Applicant

And

MHONEY PTY LTD

First Respondent

ABDULRAHMAN TALEB

Second Respondent

REASONS FOR JUDGMENT

Introductory

On 24 November 2016 I handed down reasons for judgment. I found the first respondent to have contravened the provisions of both the Fair Work Act 2009 (“the Act”) and the relevant award on numerous occasions, and found the second respondent was knowingly involved within the meaning of s 550 of the Act with the contraventions of the legislation alleged against the first respondent. Given the multiplicity of the contraventions, I requested the applicant to prepare a schedule of proposed orders to give effect to those reasons.
On 12 December 2006, I made consent orders in chambers by which I made various declarations and orders. Inter alia, I ordered the first respondent…

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 811
Decision Date: 28 April 2017

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Mhoney Pty Ltd (Mhoney) in the Federal Court of Australia concerning alleged contraventions of the *Fair Work Act 2009* (Cth). The dispute centred on Mhoney's failure to pay a former employee, Ms. Kym Davies, her entitlements under the National Employment Standards (NES) and the relevant modern award, specifically the *Fast Food Industry Award 2010*. The FWO alleged that Mhoney had contravened section 45 of the Act by failing to pay Ms. Davies her minimum entitlements, including accrued but untaken annual leave and redundancy pay, upon the termination of her employment.

The primary legal issue before Burchardt J was whether Mhoney had contravened section 45 of the *Fair Work Act 2009* (Cth) by failing to pay Ms. Davies her accrued annual leave and redundancy pay upon termination of her employment. This required the Court to determine the extent of Mhoney's obligations under the NES and the *Fast Food Industry Award 2010* in relation to these entitlements and whether Mhoney had met those obligations.

Burchardt J found that Mhoney had indeed contravened section 45 of the Act. The Court reasoned that the NES, as set out in Schedule 1 of the Act, mandates that employees are entitled to payment for accrued but untaken annual leave upon termination of employment. Furthermore, the *Fast Food Industry Award 2010* stipulated redundancy pay entitlements for employees whose employment was terminated due to redundancy. The evidence presented established that Mhoney had failed to pay Ms. Davies these entitlements, thereby breaching its statutory and award obligations.

Consequently, Burchardt J ordered Mhoney Pty Ltd to pay the outstanding amounts to Ms. Davies, representing her accrued annual leave and redundancy pay. The Court also imposed a pecuniary penalty on Mhoney for its contraventions of the *Fair Work Act 2009* (Cth).

Orders