Fair Work Ombudsman v Panol DC Pty Ltd - [2021] FCCA 373

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v PANOL DC PTY LTD & ORS

[2021] FCCA 373

Catchwords:
INDUSTRIAL LAW – Breaches of civil remedy provisions of the Fair Work Act 2009 – imposition of pecuniary penalties – relevant considerations.

INDUSTRIAL LAW – Course of conduct – course of conduct pre-dating and post-dating introduction of concept of “serious contravention” – grouping of contraventions.

INDUSTRIAL LAW – Accessorial liability for breaches of civil remedy provisions of Fair Work Act 2009 – imposition of pecuniary penalties.

Legislation:

Fair Work Act 2009, ss.45, 500, 535, 539, 545, 546, 550, 556, 557, 557A, 557B, cl.18(2) of pt.4 of sch.1

Corporations Act 2001, s.500

Crimes Act 1914, s.4AA
Fair Work Amendment (Protecting Vulnerable Workers) Act 2017
Fair Work Regulations 2009, regs.3.22, 3.33
Fast Food Industry Award 2010, cls.13, 17, 18, 19, 30

Cases cited:

Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216
Kelly v Fitzpatrick (2007) 166 IR 14
McIver v Healey [2008] FCA 425
Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153
Fair Work Ombudsman v Lohr [2018] FCA 5
Johnson v The Queen (2004) 78 ALJR 616
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151;
Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479
Pearce v The Queen (1998) 194 CLR 610
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258
Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2007) 161 FCR 513
Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union (No 2) (2010) 199 IR 373
Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

PANOL DC PTY LTD T/A CHATIME CINEMA CITY ACN 615 544 146

Second Respondent:

LEIDEN EMMANUEL PANOL

Third Respondent:

CARLO BENJAMIN DELA CRUZ

File Number:

SYG 784 of 2019

Judgment of:

Judge Cameron

Hearing date:

26 May 2020

Date of Last Submission:

26 May 2020

Delivered at:

Sydney

Delivered on:

2 March 2021

REPRESENTATION

Counsel for the Applicant:

Mr M. Seck of Counsel

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr N. Read of Counsel

Solicitors for the Respondents:

Owen Hodge

THE COURT DECLARES THAT

The first respondent contravened section 45 of the Fair Work Act 2009:
(a)by failing to pay Alfred Esguerra, Canxiaoyu Zhu,…

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: [2021] FCCA 373
Decision Date: 2 March 2021

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Panol DC Pty Ltd (the employer) in the Federal Circuit and Family Court of Australia, alleging breaches of the civil remedy provisions of the *Fair Work Act 2009* (Cth). The dispute concerned the employer's failure to pay minimum entitlements to employees, leading to claims for pecuniary penalties.

The court was required to determine whether the employer had contravened the *Fair Work Act* and, if so, to impose appropriate pecuniary penalties. A key issue was whether the contraventions constituted a "serious contravention" under section 557 of the Act, which carries higher penalty thresholds. The court also considered the employer's accessorial liability for the contraventions.

In its reasoning, the court applied established principles for determining contraventions of the *Fair Work Act* and the imposition of penalties. It considered the nature and extent of the breaches, the period over which they occurred, and the employer's conduct. The court found that the employer had engaged in a course of conduct that constituted multiple contraventions of the Act, including a serious contravention. The court also found the employer to be knowingly concerned in the contraventions.

The court ordered Panol DC Pty Ltd to pay pecuniary penalties totalling $105,000 for the contraventions.

Orders