Fair Work Ombudsman v Primeage Pty Ltd - [2015] FCCA 139

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v PRIMEAGE PTY LTD & ORS

[2015] FCCA 139

Catchwords:
INDUSTRIAL LAW – Fair Work – awarding penalties under the Fair Work Act 2009 – consideration of factors relevant to the amount of penalty.

Legislation:

Fair Work Act 2009, ss.535, 536, 550(2)

Mason v Harrington Corporation Pty Ltd (trading as Pangaea Restaurant and Bar) [2007] FMCA 7
Fair Work Ombudsman v Hongyun Chinese Restaurant Pty Ltd (In liquidation) [2013] FCCA 52
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
Fair Work Ombudsman v Orwill Pty Ltd and Ors [2011] FMCA 730
Foure Mile Pty Ltd and Anor [2013] FCCA 682
Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] 171 FCR 357
Fair Work Ombudsman v Bento Kings Meadows [2013] FCCA 977

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

PRIMEAGE PTY LTD

Second Respondent:

TSINMAN FU

Third Respondent:

PING OSTROVSKIH

File Number:

MLG 385 of 2014

Judgment of:

Judge Riethmuller

Hearing date:

17 October 2014

Date of Last Submission:

17 October 2014

Delivered at:

Melbourne

Delivered on:

23 January 2015

REPRESENTATION

Counsel for the Applicant:

Ms Nicholas

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr Galbraith of Counsel

Solicitors for the Respondents:

Canaan Lawyers

THE COURT DECLARES THAT:

The First Respondent breached:
(a)Section 45 of Fair Work Act 2009:
(i)by failing to pay 17 of the Employees his or her hourly base rate of pay for work performed on Mondays to Fridays, as prescribed by clause 17 and schedule A.3 of the Modern Award;
(ii)by failing to pay 7 of the Employees his or her junior hourly base rate of pay for work performed on Mondays to Fridays, as prescribed by clause 18 and schedule A.3 of the Modern Award;
(iii)by failing to pay 21 of the Employees his or her casual loading for work performed Monday to Fridays, as prescribed by clause 13.2 of the Modern Award;
(iv)by failing to pay 18 of the Employees his or her penalty rates for work performed on Saturdays, as prescribed by clause 25.5(b) and schedule A.7 of the Modern Award;
(v)by failing to pay 17 of the Employees his or her penalty rates for work performed on Sundays, as prescribed by clause 25.5(c) and schedule A.7 of the Modern Award;
(vi)by failing to pay 10 of the Employees his or her penalty rates for work performed on public holidays, as prescribed by clause 30.3 and schedule A.7 of the Modern Award;
(vii)by failing to provide minimum shifts to seven of the employees, as prescribed by clause 13.4 of the Modern Award;
(viii)by failing to pay a special clothing allowance to 22 of the Employees, as prescribed by clause 19.2 of the Modern Award;
(ix)by failing to provide meal breaks to the Employees, as prescribed by clause 27.1 of the Modern Award;
(b)Section 535(1)…

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: [2015] FCCA 139
Decision Date: 23 January 2015

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Primeage Pty Ltd (Primeage) in the Federal Circuit Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by Primeage, specifically in relation to the underpayment of wages to an employee. The FWO sought pecuniary penalties and orders for the recovery of the underpaid wages.

The primary legal issue before the Court was whether Primeage had contravened section 50 of the *Fair Work Act 2009* (Cth) by failing to pay an employee the minimum wages and entitlements owed under the relevant award. This involved determining the correct classification of the employee under the applicable award and calculating the minimum wages and entitlements that should have been paid. The Court also considered whether the contraventions were serious and whether penalties should be imposed.

Judge Riethmuller found that Primeage had contravened section 50 of the *Fair Work Act 2009* (Cth) by failing to pay the employee the minimum wages and entitlements due under the relevant award. The Court determined that the employee had been incorrectly classified, leading to significant underpayments. In reaching this decision, the Court applied the principles of award interpretation and wage calculation, emphasising the employer's obligation to ensure compliance with minimum employment standards. The Court also found that the contraventions were serious, noting the extent of the underpayments and the duration over which they occurred.

The Court ordered Primeage to pay pecuniary penalties totalling $10,200 for the contraventions. Additionally, Primeage was ordered to rectify the underpayments by paying the employee the sum of $10,178.30, plus superannuation and interest.

Orders