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Fair Work Ombudsman v Priority Matters Pty Ltd (No 5)

Fair Work Ombudsman v Priority Matters Pty Ltd (No 5)

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Case Copied 18 June 2020 67 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v PRIORITY MATTERS PTY LTD & ANOR (No 5)

FAIR WORK OMBUDSMAN v SUPERLATTICE SOLAR PTY LTD & ANOR (No 5)

FAIR WORK OMBUDSMAN v GENEASYS PTY LTD (IN LIQ) & ANOR (No 5)

FAIR WORK OMBUDSMAN v SILVERBROOK & ANOR (No 5)

FAIR WORK OMBUDSMAN v MPOWA PTY LTD & ANOR (No 5)

[2020] FCCA 901

Catchwords:
INDUSTRIAL LAW – Fair Work – assessment of penalties for established breaches of the Fair Work Act 2009 (Cth) by corporations and directors as accessories.

Legislation:

Fair Work Act 2009 (Cth), ss.23, 44, 45, 90, 99, 116, 117, 119, 293, 323, 328, 539, 542, 546, 550, 557, 570, 682
Federal Circuit Court of Australia Act 1999 (Cth) s.42
Federal Circuit Court Rules 2001 (Cth)
Federal Court of Australia Act 1976 (Cth), s.42
Therapeutic Goods Act 1989 (Cth)

Cases cited:

ACCC v Birubi Art Pty Ltd (in liq) [2019] FCA 996

ACCC v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212

ACCC v High Adventure Pty Ltd [2006] ATPR 42-091

ACCC v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281

ACCC v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25

ACCC v Sensaslim Australia Pty Ltd (in liq) (No 7) [2016] FCA 484

ACCC v The Vales Wine Co Pty Ltd [1996] ATPR 41-528

ACE Insurance Limited v Trifunovski (No 2) [2012] FCA 793

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: [2020] FCCA 901
Decision Date: 18 June 2020

CaseChat Overview and Summary

The Federal Court of Australia, presided over by Judge Driver, considered the assessment of penalties against Priority Matters Pty Ltd and its directors for contraventions of the *Fair Work Act 2009* (Cth). The Fair Work Ombudsman had brought proceedings alleging breaches of the Act, and the court was tasked with determining appropriate penalties for the corporate respondent and its directors, who were alleged to be accessories to those contraventions.

The central legal issues before the court were the quantum of penalties to be imposed on Priority Matters Pty Ltd for its established breaches of the *Fair Work Act 2009* (Cth), and the extent to which the directors should be held liable as accessories for those contraventions. The court was required to consider the principles governing the imposition of penalties under the Act, including the need for deterrence, the seriousness of the contraventions, and the culpability of the respondents.

In assessing penalties, Judge Driver applied the principles established in case law concerning the assessment of penalties for contraventions of the *Fair Work Act 2009* (Cth). The court considered factors such as the nature and gravity of the contraventions, the period over which they occurred, the impact on employees, and the respondents' conduct, including any admissions or attempts to remedy the situation. The court also examined the role of the directors in the contraventions, determining their level of involvement and responsibility as accessories. The court ultimately made orders for the payment of penalties by both the company and its directors.

Orders