Fair Work Ombudsman v Ohmedia Melbourne - [2015] FCCA 50

Applicant:	FAIR WORK OMBUDSMAN
First Respondent:	OHMEDIA MELBOURNE PTY LTD
Second respondent:	WEN ZHOU
File Number:	BRG 40 of 2013
Judgment of:	Judge Jarrett
Hearing date:	17 November 2014
Date of Last Submission:	17 November 2014
Delivered at:	Brisbane
Delivered on:	23 January 2015
REPRESENTATION
Solicitor for the Applicant:	Mr Fraser
Solicitors for the Applicant:	Fair Work Ombudsman

The second respondent appeared for himself and for the first respondent

ORDERS

THE COURT DECLARES THAT:

(1)

The First Respondent contravened s.45 of the Fair Work Act 2009 by

virtue of failing to pay each of the employees identified in Schedule A

to these orders:

(a)	their ordinary base rate as prescribed by the General Retail

Industry Award 2010;

(b) their casual loading prescribed for the hours worked on Mondays
to Fridays, as prescribed by the General Retail Industry Award
2010;

(c) the applicable rate for all hours worked on a Saturday, as
prescribed by the General Retail Industry Award 2010;

(d) the applicable rate for all hours worked on a Sunday, as
prescribed by the General Retail Industry Award 2010;

(2)	The First Respondent contravened s.45 of the Fair Work Act 2009 by
failing to provide Rosario Carrasco, Xuan Trang Dang and Zoreh
Zarezadehmehrizi, with a minimum shift of three hours, as prescribed
by the General Retail Industry Award 2010; and
(3)	The First Respondent contravened s.535(1) of the Fair Work Act 2009
by failing to keep records for each of the forty-five employees
identified in Schedule A, as prescribed by regulations 3.32 and 3.33 of
the Fair Work Regulations 2009.

THE COURT ORDERS THAT:

(4)

Pursuant to s.545(2)(b) of the Fair Work Act 2009, within thirty days of

the date of these orders, the First Respondent pay:

(a)	Franziska Albrecht $1,502.84;
(b)	Alaa Al-fatlawee $2,491.38;
(c)	Georgina Arrowsmith $1,432.46;
(d)	Carissa Bakker $1,159.91;
(e)	Ramprasad Baskaran $1,793.76;
(f)	Katrin Becher $1,729.60;
(g)	Lisa Berry $1,245.05;
(h)	Maria…

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: [2015] FCCA 50
Decision Date: 23 January 2015

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Ohmedia Melbourne Pty Ltd (Ohmedia) and its director, Mr. Michael O'Brien, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned allegations that Ohmedia had failed to make superannuation contributions for certain employees, thereby breaching its obligations under the Act. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether Ohmedia had contravened section 52 of the Act by failing to make the requisite superannuation contributions for its employees. A secondary issue concerned whether Mr. O'Brien was knowingly concerned in, or party to, Ohmedia's contraventions, which would render him personally liable under section 550 of the Act.

Judge Jarrett found that Ohmedia had indeed contravened section 52 of the Act by failing to pay superannuation contributions for several employees within the prescribed timeframes. The Court determined that the evidence established a pattern of non-compliance by Ohmedia. Furthermore, the Court found that Mr. O'Brien was knowingly concerned in, and party to, these contraventions, based on his role as director and his involvement in the company's financial management and decision-making processes. The Court applied the principles of statutory interpretation to the relevant provisions of the Act and considered the evidence presented by the FWO regarding the outstanding superannuation payments and Mr. O'Brien's knowledge and participation.

The Court ordered Ohmedia to pay the outstanding superannuation contributions, plus superannuation guarantee charge and interest. Mr. O'Brien was also ordered to pay pecuniary penalties for his involvement in the contraventions.

Orders