Fair Work Ombudsman v Openica Logistics Pty Ltd - [2016] FCCA 159

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v OPENICA LOGISTICS PTY LTD & ANOR

[2016] FCCA 159

Catchwords:
INDUSTRIAL LAW – Application under Fair Work Act – Failure to pay living away from home allowances and casual loading – failure to pay wages – failure to provide payslips – medium sized business – penalties – whether two penalties should apply.

Legislation:

Fair Work Act 2009 (Cth), s.45

Fair Work Regulations 2009 (Cth), r.3.42

Fair Work Ombudsman v WKO Pty Ltd (2012) FCA 1129
Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) (2014) FCA 128
Access Embroidery (Australia) Pty Ltd & Anor (2012) FMCA 835

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

OPENICA LOGISTICS PTY LTD

Second Respondent:

VLADMIR TASEKI

File Number:

MLG 946 of 2013

Judgment of:

Judge Riethmuller

Hearing date:

18 May 2015

Date of Last Submission:

18 May 2015

Delivered at:

Melbourne

Delivered on:

11 February 2016

REPRESENTATION

Counsel for the Applicant:

Ms Dowsett

Solicitors for the Applicant:

Fair Work Ombudsman

Counsel for the Respondents:

Ms Sweet

Solicitors for the Respondents:

Sparke Helmore

THE COURT DECLARES

The First Respondent contravened:
(a)section 45 of the Fair Work Act 2009 by failing to pay Giddings, Nelson and Tomkins the Living Away from Home Allowance (LAHA) in contravention of clause 14.2(c) of the Modern Award;
(b)section 45 of the Fair Work Act 2009 by failing to pay Nelson and Tommkins a 15% casual loading in contravention of clause 10.3(b) of the Modern Award;
(c)section 45 of the Fair Work Act 2009 by failing to pay Nelson for all driving time in contravention of clause 13.3(a) of the Modern Award; and
(d)regulation 3.42(1) of the Fair WorkRegulations 2009 by failing to make available to Nelson a copy of his employee records on request of Nelson.
The Second Respondent was involved in each of the contraventions by the First Respondent set out in paragraph (1)(a) to (d) above pursuant to section 550(1) of the Fair Work Act 2009.

ORDERS

The First Respondent and Second Respondent each pay penalties pursuant to section 546(1) of the Fair Work Act 2009 for the contraventions set out (1)(a) to (d) above as follows:
(a)The First Respondent pay the amount of $34,500.00;
(b)The Second Respondent pay the amount of $7,100.00.
Pursuant to section 546(3)(a) of the Fair Work Act 2009 the First Respondent and Second Respondent pay the penalties imposed pursuant to Order 1 herein to the Commonwealth.
The Applicant have liberty to apply on seven days' notice in the event that any of the preceding orders are not complied with.
The proceedings are otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 946 of 2013

FAIR WORK OMBUDSMAN

Applicant

And

OPENICA LOGISTICS PTY LTD

First Respondent

VLADMIR TASEKI

Second Respondent

REASONS FOR JUDGMENT

The applicant brings proceedings for a number of contraventions of the Fair Work Act 2009 (Cth) (‘the Act’) and Fair Work Regulations 2009 (Cth) (‘the Regulations’) as set out in the Statement of Agreed Facts filed by the parties on…

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 159
Decision Date: 11 February 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Openica Logistics Pty Ltd (Openica Logistics) in the Federal Circuit and Family Court of Australia. The dispute concerned allegations that Openica Logistics had contravened provisions of the Fair Work Act 2009 (Cth) by failing to pay its employees their entitlements under the relevant modern award and enterprise agreement. Specifically, the FWO alleged that Openica Logistics had failed to pay minimum rates of pay, overtime, and other entitlements.

The court was required to determine whether Openica Logistics had contravened the Fair Work Act by failing to pay its employees the correct minimum rates of pay and other entitlements as stipulated by the National Employment Standards, the relevant modern award, and an applicable enterprise agreement. The court also had to consider whether the contraventions were serious and whether Openica Logistics had a history of similar contraventions, which would impact the penalty to be imposed.

Judge Riethmuller found that Openica Logistics had indeed contravened the Fair Work Act by failing to pay its employees correctly. The court applied the principles of statutory interpretation to the relevant provisions of the Fair Work Act, the modern award, and the enterprise agreement. The reasoning focused on the employer's obligation to ensure that employees received at least the minimum entitlements prescribed by law and industrial instruments. The court considered evidence presented regarding the underpayments and the nature of the employment relationships.

The court ordered Openica Logistics to pay a penalty for the contraventions and to rectify the underpayments to the affected employees.

Orders