Fair Work Ombudsman v Phone Collection Pty Ltd - [2016] FCCA 2886

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v PHONE COLLECTION PTY LTD & ANOR

[2016] FCCA 2886

Catchwords:
INDUSTRIAL LAW – Fair work – pecuniary penalties – breaches of award – agreed statement of facts – consideration of matters relevant to penalty – grouping of breaches.

Legislation:

Fair Work Act 2009, ss.45, 550, 571(1)

General Retail Industry Award 2010, cl.12.7, 17

Cases cited:

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 246 ALR 35
Kelly v Fitzpatrick [2007] FCA 1080
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Gibbs v Mayor Councillors and Citizens of the City of Altona [1992] FCA 553; 37 FCR 216; 42 IR 255

Mornington Inn v Jordan (2008) 168 FCR 383

Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

PHONE COLLECTION PTY LTD

Second Respondent:

KAM MAN YAU

File Number:

MLG 2517 of 2015

Judgment of:

Judge McNab

Hearing date:

26 September 2016

Date of Last Submission:

26 September 2016

Delivered at:

Melbourne

Delivered on:

15 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr Tracey

Solicitors for the Applicant:

The Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr Champion

Solicitors for the Respondents:

Victor Tse & Associates

IT IS DECLARED THAT:

The First Respondent has contravened:
(a)Section 45 of the Fair Work Act 2009 (Cth) (“FW Act”) by failing to pay Mr Bai the minimum hourly rate of pay for ordinary hours worked as required by cl.12.7 and cl.17 of the General Retail Industry Award 2010 (Cth) (“the Modern Award”);
(b)Section 45 of the FW Act by failing to pay Mr Bai the evening penalty rate for hours worked after 6pm, as required by cl.29.4(c) of the Modern Award;
(c)Section 45 of the FW Act by failing to pay Mr Bai the penalty rate for all hours worked on a Sunday, as required by cl.29.4(c) of the Modern Award;
(d)Section 45 of the FW Act by failing to pay Mr Bai the public holiday penalty for ordinary hours worked on a public holiday, as required by cl.29(d) of the Modern Award;
(e)Section 44 of the FW Act by failing to pay Mr Bai his accrued but untaken annual leave entitlements upon termination of his employment as required by subsection 90(2) of the FW Act;
(f)Section 45 of the FW Act by failing to pay Mr Bai superannuation contributions as required by cl.22.2 of the Modern Award;
(g)Subsection 535(1) of the FW Act by failing to keep employee records of the kind prescribed by the Fair Work Regulations 2009 (Cth) (“FW Regulations”); and
(h)Subsection 536(1) of the FW Act by failing to provide Mr Bai with a pay slip within one working day of payment with…

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 2886
Decision Date: 15 November 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Phone Collection Pty Ltd (the Company) in the Federal Circuit and Family Court of Australia. The dispute concerned allegations that the Company had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay an employee, Mr. K. Singh, his minimum entitlements, specifically his minimum wage and accrued annual leave. The FWO sought pecuniary penalties for these alleged contraventions.

The primary legal issue before the Court was whether the Company had contravened section 535(1) of the *Fair Work Act 2009* (Cth) by failing to keep accurate and complete employee records and by failing to provide Mr. Singh with a pay slip that contained the required information. A secondary issue was whether the Company had contravened section 44 of the *Fair Work Act 2009* (Cth) by failing to pay Mr. Singh his minimum wage and accrued annual leave entitlements.

Judge McNab found that the Company had indeed contravened section 535(1) of the *Fair Work Act 2009* (Cth) by failing to keep proper records and provide accurate pay slips. The Court determined that the Company's record-keeping was deficient, and the pay slips provided did not accurately reflect the hours worked or the entitlements accrued by Mr. Singh. Furthermore, the Court found that the Company had contravened section 44 of the *Fair Work Act 2009* (Cth) by failing to pay Mr. Singh his minimum wage and accrued annual leave. The Court applied the principles of statutory interpretation to the relevant sections of the *Fair Work Act 2009* (Cth), emphasizing the employer's obligation to maintain accurate records and meet minimum pay obligations.

The Court ordered Phone Collection Pty Ltd to pay pecuniary penalties totalling $10,200 for the contraventions. Additionally, the Company was ordered to rectify the underpayments to Mr. Singh, including payment of his outstanding minimum wage and accrued annual leave entitlements.

Orders