Fair Work Ombudsman v Plushbear Pty Ltd

[2021] FedCFamC2G 60

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)

Fair Work Ombudsman v Plushbear Pty Ltd [2021] FedCFamC2G 60

File number(s):

MLG 665 of 2020

Judgment of:

JUDGE A KELLY

Date of judgment:

21 September 2021

Catchwords:

INDUSTRIAL LAW – Penalties – admitted contraventions of Fair Work Act 2009 (Cth) – underpayment of wages to employees – failure to comply with compliance notice – where proceedings brought against respondent company and second respondent – where second respondent is sole director and shareholder of respondent company – where second respondent was a person ‘involved’ within the meaning of s 550 in the contravention of s 716(5) of the Fair Work Act 2009 by respondent company – appropriate penalty to be imposed – applicable principles – penalty determined.  

Legislation:

Fair Work Act 2009 (Cth), ss 539, 546, 550, 716
Restaurant Industry Award 2010, cll 13.1, 13.5, 33.2, 20.1, 34.1

Explanatory Memorandum, Fair Work Bill 2008 (Cth), par 2673  

Cases cited:

A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157
Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Australian Securities and Investments Commission v Allianz Australia Insurance Limited [2021] FCA 1062
Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Fair Work Ombudsman v Austrend International Pty Ltd (No 2) [2020] FCA 1193
Fair Work Ombudsman v Blu Hornsby Pty Ltd & Anor [2016] FCCA 1150
Fair Work Ombudsman v IE Enterprises Pty Ltd [2021] FCA 60
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown (2017) 275 IR 148
Kelly v Fitzpatrick (2007) 166 IR 14
Pattinson v Australian Building and Construction Commissioner (2020) 384 ALR 75
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Trade Practices Commission v CSR Ltd (1990) 12 AAR 343
Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 151 ACSR 407

Division:

Division 2 General Federal Law

Number of paragraphs:

2

Place:

Melbourne

Solicitor for the Applicant:

Australian Government Solicitor

Solicitor for the Respondents:

HR Legal

ORDERS

MLG 665 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

PLUSHBEAR PTY LTD (ACN 608 061 481)

First Respondent

BARRY GOLD

Second Respondent

ORDER MADE BY:	JUDGE A KELLY
DATE OF ORDER:	21 SEPTEMBER 2021

THE COURT DECLARES THAT:

1.The second respondent, Barry Gold, the sole director and shareholder of the first respondent, was, within the meaning of ss 550(1) and 550(2)(c) of the Fair Work Act 2009 (Cth) (Act) a person involved in contraventions by the first respondent, Plushbear Pty Ltd (ACN 601 061 481), in taking action as required by a compliance notice dated 26 August 2019 issued pursuant to s 716(2) of the Act and in failing to produce evidence as required in compliance with such notice.

2.The second respondent, Barry Gold, is taken, pursuant to s 550(1) of the Act to have personally contravened s 716(5) of the Act.

THE COURT ORDERS THAT:

3.The second respondent, Barry Gold, pay a penalty in the sum of $3150.

4.The penalty payable pursuant to paragraph (3) of this Order be paid forthwith.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE A KELLY

1. On 20 September 2021, reasons for judgment and orders were made in Fair Work Ombudsman v Goldream Pty Ltd [2021] FedCFamCG2 61.  Those reasons explained why orders were made against the second respondent, Mr Barry Gold, the sole director and shareholder of that company and who, in those circumstances, agreed of his involvement in certain contraventions of the Fair Work Act 2009 (Cth) and of the penalty that should be imposed.

2. The orders made in this proceeding against Mr Gold, who is also the sole shareholder and director of the first respondent Plushbear Pty Ltd (ACN 601 061 481) are made for the reasons is given in Fair Work Ombudsman v Goldream Pty Ltd, which reasons are incorporated in these reasons for judgment.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly.

Associate:

Dated:       21 September 2021