Fair Work Ombudsman v Poisson Pty Ltd - [2018] FCCA 2766

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v POISSON PTY LTD & ANOR

[2018] FCCA 2766

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties – contravention of Fair Work Act – contravention of Award entitlements to basic rate of pay, penalty rates and loadings – failing to keep records – penalties imposed.

Legislation:

Fair Work Act 2009 (Cth), ss.3(b), 12, 45, 44(1), 535(1), 536(2), 539(2), 546(1) & (2), 546(1), 550(2), 557, 557(1)
Crimes Legislation Amendment (serious drugs, Identity, Crime and other measures) Act 2012 (Cth), Sch 3, Pt 2, ss.7
Crimes Act 1914 (Cth), ss.4AA
Fair Work Regulations 2009 (Cth), regs.3.32(c)-(e), 3.33(1)-(3), 3.34, 3.36(1), 3.46(1)(g), 3.46(5)

Cases cited:

Fair Work Ombudsman v Jet Star Airways Ltd [2014] FCA 33
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghi Charlestown [2017] FCA 1301
Commonwealth v Director Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65
Fair Work Ombudsman v Siner Enterprises Pty Ltd and Anor (No.2) [2018] FCCA 589
Australian Building and Construction Commissioner v Huddy (No.2) [2017] FCA 1088
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Markarian v R [2005] HCA 25; (2006) 228 CLR 357
Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14
Fair Work Ombudsman v Han Investments Pty Ltd [2017] FCA 623
Murrihy v Betezy.com.au Pty Ltd (No.2) [2013] 221 FCR 118; [203] FCA 1146
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 (Mornington Inn)
Fair Work Ombudsman v Dosanjh [2016] FCCA 923

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

POISSON PTY LTD

Second Respondent:

MIYUKI YOGO

File Number:

BRG 10 of 2016

Judgment of:

Judge Middleton

Hearing date:

15 June 2018

Date of Last Submission:

15 June 2018

Delivered at:

Townsville

Delivered on:

5 October 2018

REPRESENTATION

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr Turnbull

Solicitors for the Respondents:

Myles Thompson Solicitor

DECLARATIONS

The First Respondent, Poisson Pty Ltd, contravened each of the following civil remedy provisions:
(a)section 45 of the FW Act by contravening the following provisions of the Restaurant Industry Award 2010 (Award):
(i)clause 20.1 of the Award and clause A.2.5 of Schedule A to the Award, by failing to pay Ms Tai the applicable minimum rate of pay for ordinary time hours worked on Monday to Friday;
(ii)clause 13.1 of the Award and clause A.6.4 of Schedule A to the Award, by failing to pay Ms Tai the applicable casual loading for all ordinary time hours worked on Monday to Friday;
(iii)clause 34.1 of the Award and clause A.5.4 of Schedule A to the Award, by failing to pay Ms Tai a penalty rate for ordinary time hours worked on Saturdays;
(iv)clause 34.1 of the Award and clause A.5.4 of Schedule A to the Award, by failing to pay Ms Tai a penalty rate for…

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: [2018] FCCA 2766
Decision Date: 5 October 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Poisson Pty Ltd in the Federal Circuit and Family Court of Australia concerning alleged contraventions of the *Fair Work Act 2009* (Cth) and an applicable award. The dispute centred on Poisson Pty Ltd's failure to provide employees with their minimum award entitlements, specifically regarding basic rates of pay, penalty rates, and loadings, and its failure to maintain accurate employment records as required by the Act.

The court was required to determine whether Poisson Pty Ltd had contravened the Fair Work Act and the relevant award by underpaying its employees and by failing to keep and retain proper employment records. A further issue was the appropriate level of pecuniary penalties to be imposed for these contraventions, taking into account the seriousness of the conduct and any mitigating or aggravating factors.

Judge Middleton found that Poisson Pty Ltd had indeed contravened the Fair Work Act and the award by failing to pay employees their correct entitlements and by not keeping adequate records. The court applied the principles of statutory interpretation to the relevant provisions of the Fair Work Act and the award, finding that the employer had a clear obligation to ensure employees received at least the minimum rates of pay and to maintain accurate records. In determining penalties, the court considered factors such as the duration and extent of the underpayments, the employer's level of responsibility, and the need for deterrence. The court ordered Poisson Pty Ltd to pay pecuniary penalties totalling $10,800 for the contraventions.

Orders