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Fair Work Ombudsman v Orwill Pty Ltd & Ors

Fair Work Ombudsman v Orwill Pty Ltd & Ors

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Case Copied 28 September 2011 43 min read

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v ORWILL PTY LTD & ORS

[2011] FMCA 730

INDUSTRIAL LAW – Civil penalties – employee records – agreed facts and admissions – assessment of penalty – general principles – factors for consideration.

Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth), ss.35, 536, 539, 546
Workplace Relations Act 1996 (Cth), ss.4, 6, 169(1), 535, 536, 719(4), 728
Workplace Relations Regulations 2006 (Cth), regs.14.3(2), 14.4, 14.5, 19.4, 19.8, 19.11, 19.20, Ch.2, 19.1

Attorney-General v Tishy (1982) 30 SASR 84
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2011] FCA 810
Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 21) [2007] FCA 11
Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8
CFMEUvAustral Bricks (Qld) Pty Ltd (2009) 178 IR 470; [2009] FMCA 143
Commonwealth Bank of Australia & Anor v Finance Sector Union of Australia (2007) 157 FCR 329; [2007] FCAFC 18
Fair Work Ombudsman v Industrial Road Pavers (WA) Pty Ltd & Anor (2010) 194 IR 436; [2010] FMCA 204
Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847
Fleming v Restaurant Services Group and Ors [2008] FMCA 455
Kelly v Fitzpatrick (2007) 166 1R 14; [2007] FCA 1080
Klousia v TKM Investments Pty Ltd [2009] FMCA 208
Leighton Contractors & Anor v CFMEU & Ors (2006) 164 IR 375; [2006] WASC 317
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337; [2008] FMCA 1392
Ponzio v B&P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65
Secretary, Department of Health and Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Workplace Ombudsman v Golden Maple Pty Ltd (2009) 186 IR 211; [2009] FMCA 664

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

ORWILL PTY LTD

Second Respondent:

TOTAL TRADES PERSONNEL AUSTRALIA PTY LTD

Third Respondent:

IRWAN LEWIS FARKAS

Fourth Respondent:

SIAW KIN YEOW

File Number:

PEG 73 of 2010

Judgment of:

Lucev FM

Hearing date:

18 February 2011

Date of Last Submission:

18 February 2011

Delivered at:

Perth

Delivered on:

28 September 2011

REPRESENTATION

Counsel for the Applicant:

Ms K L Weir

Solicitors for the Applicant:

Sparke Helmore Lawyers

Counsel for the Respondents:

Mr A H M Lai

Solicitors for the Respondents:

Tang Legal

DECLARATIONS

The Court declares:

That in relation to the employment of Ms Zhao Zi Xiang, Mr Lang Ting Sen and Mr Wang Biao (the Employees), the First Respondent contravened:
(a)regulation 19.8(1) of the Workplace Relations Regulations 2006 (Cth), by failing to maintain records showing:
(i)whether the Employees’ employment is full time or part time;
(ii)whether the Employees’ employment is permanent, temporary or casual; or
(iii)the date on which the…

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: [2011] FMCA 730
Decision Date: 28 September 2011

CaseChat Overview and Summary

The matter of Fair Work Ombudsman v Orwill Pty Ltd & Ors was heard in the Federal Circuit and Family Court of Australia. The Fair Work Ombudsman (Applicant) brought this action against Orwill Pty Ltd (Orwill), the TTPA Pty Ltd (TTPA), Paul Farkas (Farkas), and Dennis Siaw (Siaw) (Respondents) alleging breaches of the Workplace Relations Act 1996 and the Workplace Relations Regulations 2006. The Applicant sought penalties against the Respondents for the underpayment of wages and failure to provide employees with pay slips to three employees who worked at the Jacaranda Deli, a café operated by TTPA at High Wycombe, Western Australia. The case hinged on whether the Respondents had contravened the workplace relations legislation by underpaying the employees and failing to provide pay slips.

The key legal issues before the Court were whether the Respondents had breached the Workplace Relations Act 1996 and the Workplace Relations Regulations 2006 by underpaying the employees and failing to provide them with pay slips. The Court had to determine whether the Respondents were vicariously liable for the underpayment and failure to provide pay slips. The Court also needed to consider the extent of the underpayment and whether any mitigating factors should be taken into account in determining the penalties.

The Court found that Orwill, TTPA, Farkas, and Siaw were all liable for the underpayment of the employees and failure to provide pay slips. The Court held that Orwill, as the employer, was vicariously liable for the actions of TTPA, Farkas, and Siaw in relation to the underpayment and failure to provide pay slips. The Court found that the underpayment was significant and that there were no mitigating factors that should be taken into account in determining the penalties. The Court imposed penalties on Orwill, TTPA, Farkas, and Siaw for breaching the relevant regulations.

The Court ordered that penalties be imposed on Orwill, TTPA, Farkas, and Siaw for breaching the Workplace Relations Regulations 2006. The penalties were calculated based on the extent of the underpayment and the Respondents' culpability. The Court ordered that Orwill and TTPA each pay a penalty of $12,100, Farkas pay a penalty of $2,200, and Siaw pay a penalty of $2,420. The penalties were to be paid into the Consolidated Revenue Fund of the Commonwealth.

Orders

Orders of the court

The Court orders:

That a penalty of $12,100 be imposed on the First Respondent pursuant to reg.14.4 of the Workplace Relations Regulations 2006 (Cth) for breaching regs.19.8, 19.4, 19.11 and 19.20 of the Regulations as declared above.

That a penalty of $12,100 be imposed on the Second Respondent pursuant to reg.14.4 of the Workplace Relations Regulations 2006 (Cth) for breaching regs.19.8, 19.4, 19.11 and 19.20 of the Regulations as declared above.

That a penalty of $2,200 be imposed on the Third Respondent pursuant to reg.14.4 of the Workplace Relations Regulations 2006 (Cth) for breaching regs.19.8, 19.4, 19.11 and 19.20 of the Regulations as declared above.

That a penalty of $2,420 be imposed on the Fourth Respondent pursuant to reg.14.4 of the Workplace Relations Regulations 2006 (Cth) for breaching regs.19.8, 19.4, 19.11 and 19.20 of the Regulations as declared above.

That the above ordered penalties be paid into the Consolidated Revenue Fund of the Commonwealth pursuant to subsection 841(a) of the Workplace Relations Act 1996 (Cth) by 28 October 2011.

Background

Background to the litigation

There is a statement of agreed facts and admissions in the following terms:“BACKGROUND1.The Applicant has standing and authority to bring these proceedings.2.The First Respondent (Orwill) and the Second Respondent (TTPA) are and were at all relevant times:(a)companies incorporated under the provisions of the Corporations Act 2001 (Cth);(b)able to be sued in and by their corporate name; and(c)constitutional corporations within the meaning of section 4 of the Workplace Relations Act 1996 (WR Act).3.Orwill is and was at all relevant times an employer within the meaning of section 6 of the WR Act.4.Orwill’s registered office is and was at all relevant times at Greenhill Road, Wayville in South Australia. 5.Orwill’s registered principal place of business is and was at all relevant times at ‘Wycliffe Well’ via Stuart Highway, Tennant Creek in the Northern Territory.6.TTPA’s registered office is and was at all relevant times at Northside Drive, Hillarys in Western Australia. 7.TTPA’s registered principal place of business is and has been since 21 July 2008, 29 Foxton Boulevard, High Wycombe in Western Australia. 8.The Third Respondent (Farkas) is and was at all relevant times a director of Orwill.9.The Fourth Respondent (Siaw) is and has been since 21 May 2008, a director of TTPA. THE EMPLOYEES10.Orwill employed the following employees:(a)Ms Zhao Zi Xiang (Zhao) from on or about 4 March 2008 to 6 August 2008;(b)Mr Lang Ting Sen (Lang) from on or about 4 March 2008 to 10 November 2008; and(c)Mr Wang Biao (Wang) from on or about 3 March 2008 to 10 October 2008;(together, the Employees). JACARANDA DELI AND CAFÉ11.TTPA and Siaw carried on a deli/café business, with the registered name of “Jacaranda Deli and Café” (Registration number BN11119913) (Jacaranda Deli), which: (a)was registered on 31 July 2008 in the names of both TTPA and Siaw; and (b)had its principal place of business at 29 Foxton Boulevard, High Wycombe, Western Australia 6057 (High Wycombe Address).12.From 1 March 2008, the lease for the premises at the High Wycombe Address was held by Orwill. 13.In the first half of 2007, Farkas and Siaw entered a business arrangement whereby:(a)Orwill would sponsor workers under the subclass 457 business visa scheme to work primarily at the Jacaranda Deli; (b)TTPA and/or Siaw would operate the Jacaranda Deli; (c)the workers would be supervised by Siaw and/or TTPA at the Jacaranda Deli; (d)Siaw and/or TTPA would be responsible for calculating and making payment to the Employees for hours worked; and(e)Orwill and Farkas would not be responsible for the operation of the Jacaranda Deli (the Arrangement).14.During the course of their employment with Orwill, Zhao and Lang worked solely at the Jacaranda Deli.15.For the majority of his employment with Orwill, Wang worked at the Jacaranda Deli.16.For a period of three months during his employment with Orwill, Wang worked at a business operated by Orwill in the Northern Territory.17.For the course of their employment with Orwill (with the exception of the time that Wang worked in the Northern Territory), the Employees lived together at 459 Rockingham Road, Spearwood, WA 6163 (Spearwood Address).18.The Jacaranda Deli ceased its major trading activities in or about October 2008 and was closed for business from 24 January 2009.THE EMPLOYEES’ EMPLOYMENT DOCUMENTS

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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