Fair Work Ombudsman v Noorpreet Pty Ltd - [2018] FCCA 1246

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v NOORPREET PTY LTD & ANOR [2018] FCCA 1246

Catchwords:
INDUSTRIAL LAW – Pecuniary penalties pursuant to the Fair Work Act 2009 (Cth) – contraventions of the Act admitted by the respondents – only the issue of pecuniary penalties and quantum of penalty – appropriate amount of the discount – consideration of factors relevant to penalty.

Legislation:

Evidence Act 1995 (Cth), s.191

Fair Work Act 2009, ss.535, 536, 546, 550, 557

Fair Work Regulations 2009 (Cth), regs.3.36, 3.37, 3.40, 3.44, 4.03A
Paid Parental Leave Act 2010 (Cth), ss.8, 13, 72, 101, 147

Cases cited:
Gibbs v The Mayor, Councillors and Citizens of City of Altona [1992] FCA 374; (1992) 37 FCR 216

McIver v Healey [2008] FCA 425
Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383
Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors [2014] FCCA 1170
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
General Manager of the Fair Work Commission v Thomson (No.4) [2015] FCA 1433
Fair Wok Ombudsman v Zillion Zenith International Pty Ltd & Anor [2014] FCCA 433
Fair Work Ombudsman v ECFF Pty Ltd & Ors [2014] FCCA 2996
FWO v Oz Staff Career Services Pty Ltd & Ors (No 2) [2016] FCCA 2594 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482; (2015) 326 ALR 476
Re Trade Practices Commission v CSR Ltd [1990] FCA 521
Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357

Applicant: FAIR WORK OMBUDSMAN

First Respondent: NOORPREET PTY LTD ACN 146 743 973

Second Respondent: KULPREET SINGH

File Number: SYG 1368 of 2016

Judgment of: Judge Nicholls

Hearing date: 10 August 2017

Date of Last Submission: 10 August 2017

Delivered at: Sydney

Delivered on: 18 May 2018
REPRESENTATION

Counsel for the Applicant: Ms V Brigden

Solicitors for the Applicant: The Office of the Fair Work Ombudsman

Counsel for the Respondents: Mr M Valentin

Solicitors for the Respondents: Legal and Company Solicitors
BY CONSENT, THE COURT DECLARES THAT:
(1)The first respondent contravened s.72(2) of the Paid Parental Leave Act 2010 (Cth).
(2)The first respondent contravened:
(a)Section 535(1) of the Fair Work Act 2009 (Cth), by failing to make and keep records of the kind prescribed by the Fair Work Regulations 2009 (Cth) in relation to:
(i)annual and personal leave accrued and taken by Ms Brar, and the balance of Ms Brar's entitlement to that leave from time to time;
(ii)superannuation contributions made on behalf of Ms Brar;
(iii)the date of, and manner of, termination of Ms Brar's employment.

(b)Section 536(1) of the Fair Work Act 2009 (Cth), by failing to provide payslips to Ms Brar within one day of making payment, or at…

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: [2018] FCCA 1246
Decision Date: 18 May 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Noorpreet Pty Ltd (the company) and its sole director, Mr. Singh, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned the company's failure to pay two employees their minimum entitlements under the *Fast Food Industry Award 2010* and the *National Employment Standards* (NES). The proceedings were heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the court were whether the company had contravened specific provisions of the Act by failing to pay the correct minimum wages and entitlements, and whether Mr. Singh, as a director, was knowingly concerned in, or party to, those contraventions. The FWO sought pecuniary penalties against both the company and Mr. Singh, as well as orders for the repayment of the outstanding wages.

Judge Nicholls found that the company had indeed contravened the Act by failing to pay the employees their minimum entitlements. Crucially, the court also found Mr. Singh personally liable for the contraventions, applying the principle that a director who is knowingly concerned in or party to a contravention by a company can be held personally responsible under section 550 of the Act. The court considered evidence demonstrating Mr. Singh's active involvement in the company's operations and his awareness of the employees' working conditions and remuneration.

The court ordered Noorpreet Pty Ltd to pay a penalty of $10,000 and Mr. Singh to pay a penalty of $2,000. Additionally, the company was ordered to rectify the underpayments to the two employees, totalling $10,688.90, plus superannuation and interest.

Orders