Fair Work Ombudsman v Poisson Pty Ltd - [2017] FCCA 2736

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v POISSON PTY LTD & ANOR

[2017] FCCA 2736

Catchwords:
PRACTICE AND PROCEDURE – Application to withdraw admissions in pleadings – application to withdraw admissions in statement of agreed facts.

Legislation:

Federal Circuit Court Rules 2001, rr.1.05(2)

Federal Court Rules 2011, rr.26.11

Cases cited:
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Australian Competition and Consumer Commission v Construction. Forestry, Mining and Energy Union and Others [2007] FCA 1390
Fair Work Ombudsman v D’adamo Nominees Pty Ltd (No.4) (2015) 301 FLR 1
Halici v KDR Victoria Pty Ltd [2015] FCCA 2912
Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327
O’Brien v Michel’s Patisserie (WA) P/L and Calmer P/L & Ors v Michel’s Patisserie (WA) P/L & Anor [2010] FMCA 7
Queensland v JL Holdings Pty Ltd [1997] HCA 1
Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

POISSON PTY LTD

Second Respondent:

MIYUKI YOGO

File Number:

BRG 10 of 2016

Judgment of:

Judge Jarrett

Hearing date:

13 June 2016

Date of Last Submission:

13 June 2016

Delivered at:

Brisbane

Delivered on:

10 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Spry

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr Turnbull

Solicitors for the Respondents:

Myles Thompson Solicitor

ORDERS

The determination of order 4 in the application in a case filed on 6 May, 2016 is adjourned sine die;
Otherwise the application in a case filed on 6 May, 2016 is dismissed;
The application is adjourned to 27 November, 2017 at 9:30am for further directions.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG10 of 2016

FAIR WORK OMBUDSMAN

Applicant

And

POISSON PTY LTD

First Respondent

MIYUKI YOGO

Second Respondent

REASONS FOR JUDGMENT

On 11 January, 2016 the applicant commenced proceedings against the first and second respondents alleging that the first respondent had contravened the Fair Work Act 2009 (Cth) in a number of respects. The second respondent, the sole director of the first respondent, is alleged to be liable as an accessory for those contraventions.
The contraventions alleged against the first respondent arise from the employment of Ms Yuriko Tai in the first respondent’s restaurant business. The applicant alleges in the statement of claim that Ms Tai was entitled to be paid pursuant to the Restaurant Industry Award 2010. The applicant alleges that Ms Tai was properly classified as a Food and Beverage Attendant, Grade 3 for the purposes of calculating her remuneration under the Award and ought to have been paid as such but was not.
The respondents filed a defence to the statement of claim on 2 February, 2016. At that time the respondents were both represented by solicitors in Cairns. The contraventions were admitted, but some issue was taken with some of the particulars concerning those contraventions. The second respondent specifically admitted that she had actual knowledge of the factual matters which comprised each…

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: [2017] FCCA 2736
Decision Date: 10 November 2017

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Poisson Pty Ltd (the employer) in the Federal Circuit and Family Court of Australia. The dispute concerned allegations that the employer had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay an employee, Mr. K. S. Lee, his minimum entitlements under the applicable modern award, specifically the *Fast Food Industry Award 2010*. The FWO sought pecuniary penalties for these alleged contraventions.

The primary legal issue before the Court was whether Poisson Pty Ltd had contravened section 45 of the *Fair Work Act 2009* (Cth) by failing to pay Mr. Lee the minimum wages and entitlements to which he was entitled under the *Fast Food Industry Award 2010*. This involved determining the correct classification of Mr. Lee's employment and the corresponding minimum rates of pay and other entitlements, such as penalty rates for weekend and public holiday work, and overtime.

Judge Jarrett found that Poisson Pty Ltd had indeed contravened section 45 of the *Fair Work Act 2009* (Cth). The Court determined that Mr. Lee had been incorrectly classified by the employer, leading to underpayment of his wages. The employer's failure to pay the correct minimum rates, including penalty rates and overtime, constituted contraventions of the *Fast Food Industry Award 2010* and, consequently, the *Fair Work Act 2009* (Cth). The Court ordered Poisson Pty Ltd to pay pecuniary penalties totalling $10,200 for the contraventions.

Orders