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Fair Work Ombudsman v Promoting U Pty Ltd & Anor

Fair Work Ombudsman v Promoting U Pty Ltd & Anor

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

FWO v PROMOTING U PTY LTD & ANOR

[2012] FMCA 58

INDUSTRIAL LAW – Application for civil penalties – agreed statement of facts – numerous contraventions of industrial law – consideration of range of penalty to be applied – consideration and application of the totality principle.

Workplace Relations Act 1996, s.235(2)
Workplace Relations Regulations 1996
Fair Work Act 2009
Evidence Act 1995, s.128

Ferrall and Others v Blyton; Attorney-General of the Commonwealth (2000) 27 Fam LR 178
Lida Song v Ming Ying (2010) 273 ALR 213
Cornwell v R (2007) 231 CLR 260
Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216
Mason v Harrington Corp Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Kelly v Fitzpatrick (2007) 166 IR 14
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

PROMOTING U PTY LTD
A.C.N. 124 022 224

Second Respondent:

SEBASTIAN BOI

File Number:

MLG 1778 of 2010

Judgment of:

Burchardt FM

Hearing date:

25 November 2011

Date of Last Submission:

13 December 2011

Delivered at:

Melbourne

Delivered on:

3 February 2012

REPRESENTATION

Counsel for the Applicant:

Ms Richards

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr McKenna

Solicitors for the Respondents:

Hutchinson Legal

ORDERS

THE COURT DECLARES THAT:

The First and Second Respondents each contravened:
(a)During the period from 18 October 2007 to 30 June 2009, s.182(1) of the Workplace Relations Act 1996 (Cth) (“WR Act”) in relation to Angeli, Adams and Tan by failing to pay the guaranteed basic periodic rate of pay contained in the preserved Australian Pay and Conditions Scale (“APSC”) derived from the Graphic Arts – General Award 2000 (“the Award”);
(b)During the period from 1 July 2009 to 9 December 2009, s.182(1) of the WR Act and item 5, schedule 16 of the Fair Work(Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“Transitional Act”) in relation to Adams and Tan by failing to pay the guaranteed basic periodic rate of pay contained in the preserved APCS derived from the Award;
(c)Section 185(2) of the WR Act in relation to Angeli by failing to pay at least the guaranteed casual loading contained in the preserved APCS derived from the Award;
(d)Section 235(2) of the WR Act and item 6(1)(a) of schedule 16 of the Transitional Act in relation to Adams and Tan by failing to pay accrued annual leave on termination of employment;
(e)Section 323(1) of the Fair Work Act 2009 (Cth) (“FW Act”) in relation to Adams and Tan by failing to pay amounts payable in relation to the performance of work in full and at least monthly;
(f)Regulation 19.11(1) and regulation 19.11(4) of the Workplace Relations Regulations 2006 (Cth) (“WR Regulations

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: [2012] FMCA 58
Decision Date: 3 February 2012

CaseChat Overview and Summary

The case involved the Fair Work Ombudsman bringing an action against Promoting U Pty Ltd and another respondent, who are collectively referred to as the respondents. The dispute centered on alleged contraventions of various sections of the Workplace Relations Act 1996 (Cth) and the Fair Work Act 2009 (Cth), as well as certain regulations, by the respondents in relation to their employees. The nature of the contraventions included failure to pay the correct rates of pay, annual leave entitlements, and other obligations under the applicable awards and legislation. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the respondents had contravened specific provisions of the Workplace Relations Act 1996 (Cth), the Fair Work Act 2009 (Cth), and the relevant regulations by not adhering to the stipulated pay rates, leave entitlements, and record-keeping requirements for their employees. The court had to consider the evidence presented by the Fair Work Ombudsman and the respondents to ascertain whether the contraventions occurred as alleged and, if so, the appropriate remedies and penalties under the relevant legislation.

The court found that the respondents had indeed contravened the provisions of the Workplace Relations Act 1996 (Cth), the Fair Work Act 2009 (Cth), and the regulations by failing to pay the correct rates of pay, annual leave, and other entitlements to their employees. The court detailed the specific contraventions and the periods during which they occurred. It also considered the penalties applicable under the legislation and ordered the respondents to pay specified penalties and back payments to the affected employees. The penalties were calculated based on the severity and frequency of the contraventions, and the court also ordered the payment of interest on the back payments. The court mandated a repayment schedule for the back payments and interest to be followed by the respondents.

In summary, the court declared that the respondents had contravened several sections of the Workplace Relations Act 1996 (Cth) and the Fair Work Act 2009 (Cth) and ordered them to pay penalties, back payments, and interest to the affected employees. The court also specified the method and schedule for the payment of these amounts.

Orders

Orders of the court

THE COURT DECLARES THAT:

The First and Second Respondents each contravened:

(a) During the period from 18 October 2007 to 30 June 2009, s.182(1) of the Workplace Relations Act 1996 (Cth) (“WR Act”) in relation to Angeli, Adams and Tan by failing to pay the guaranteed basic periodic rate of pay contained in the preserved Australian Pay and Conditions Scale (“APSC”) derived from the Graphic Arts – General Award 2000 (“the Award”);

(b) During the period from 1 July 2009 to 9 December 2009, s.182(1) of the WR Act and item 5, schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“Transitional Act”) in relation to Adams and Tan by failing to pay the guaranteed basic periodic rate of pay contained in the preserved APCS derived from the Award;

(c) Section 185(2) of the WR Act in relation to Angeli by failing to pay at least the guaranteed casual loading contained in the preserved APCS derived from the Award;

(d) Section 235(2) of the WR Act and item 6(1)(a) of schedule 16 of the Transitional Act in relation to Adams and Tan by failing to pay accrued annual leave on termination of employment;

(e) Section 323(1) of the Fair Work Act 2009 (Cth) (“FW Act”) in relation to Adams and Tan by failing to pay amounts payable in relation to the performance of work in full and at least monthly;

(f) Regulation 19.11(1) and regulation 19.11(4) of the Workplace Relations Regulations 2006 (Cth) (“WR Regulations”) in relation to Adams by failing to keep records in relation to rates of remuneration and payments made;

(g) Section 535 of the FW Act in relation to Adams and Tan by:

(i) Failing to keep records in relation to rates of remuneration as required by Regulation 3.33 of the Fair Work Regulations 2009 (Cth) (“FW Regulations”); and

(ii) Failing to keep records in relation to payment as required by Regulation 3.36 of the FW Regulations;

(h) Section 536(1) of the FW Act in relation to Tan and Bryant by failing to give a payslip within one working day of payment to the employee.

(i) Section 44(1) of the FW Act in relation to Bryant by contravening a provision of the National Employment Standards, by failing to pay accrued leave on termination of employment pursuant to section 90(2) of the FW Act; and

(j) Section 45 of the FW Act in relation to Bryant by contravening terms of a modern award, by contravening the Graphic Arts, Printing and Publishing Award 2010 (“the Modern Award”) by;

(i) Failing to pay Bryant the minimum wages set out in Clause 17.1 of the Modern Award;

(ii) Failing to pay wages to Bryant no more than two clear days after the end of the pay week in respect of which they became due pursuant to Clause 28.1 of the Modern Award; and

(iii) Failing to pay Bryant all monies due to him on termination of employment pursuant to Clause 28.5 of the Modern Award.

THE COURT ORDERS THAT:

Pursuant to s.719(1) of the WR Act, regulation 14.4 of the WR Regulations, and s.546(1) of the FW Act the First Respondent pay an aggregate penalty of $65,000 in respect of the contraventions referred to in declarations 1(a) to 1(j) above.

Pursuant to s.719(1) of the WR Act, regulation 14.4 of the WR Regulations, and s.546(1) of the FW Act the Second Respondent pay an aggregate penalty of $13,000 in respect of the contraventions referred to in declarations 1(a) to 1(j) above.

Pursuant to s.719(6) of the WR Act and s.545(2) of the FW Act the First Respondent pay:

(a) $5,013.73 to Adams; and

(b) $1,998.13 to Tan.

Pursuant to s.545(2) of the FW Act the First Respondent pay $2,406.46 to Bryant.

Pursuant to s.541(2) of the FW Act the First Respondent pay $528.15 to Bryant in respect of unpaid safety net contractual entitlements.

Pursuant to s.722 of the WR Act and s.547 of the FW Act the First Respondent pay to the respective employees interest on the amounts referred to in the preceding Orders 3 to 5 above, in the amounts of:

(a) $ 635.21 to Adams;

(b) $ 235.04 to Tan; and

Payment of the amounts referred to in Orders 3 to 5 above is to be made in accordance with Schedule A, by way of bank cheque made out in the stipulated amount to the respective recipient, forwarded to the Applicant by the 15th day of each month.

Payment of the interest amounts referred to in Order 6 above is to be made within 30 days of the last payment made pursuant to Schedule A, by way of bank cheque made out in the stipulated amount to each respective recipient and forwarded to the Applicant.

Pursuant to s.841(a) of the WR Act and s.546(3)(a) of the FW Act each of the Respondents pay the penalties into the Consolidated Revenue Fund of the Commonwealth.

10.

The payment of penalties referred to in Orders 1 and 2 above be made within 90 of the date of this Order.

Schedule A - Repayment schedule to form basis of payment plan – based on $1,000 per month and in respect to principal underpayment amounts only (exclusive of interest)

Amounts Outstanding:

Angeli $534.05

Adams $5,479.68

Tan $1,998.13

Bryant $2,934.61 [$2,406.46 + $528.15]

Dates/Payments/Recipients:

15 November 2011:

· $534.05 to Angeli

· $465.95 to Adams

15 December 2011:

· $1000 to Adams

15 January 2012:

· $1000 to Adams

15 February 2012:

· $500 to Adams

· $500 to Tan

15 March 2012:

· $500 to Adams

· $500 to Tan

15 April 2012:

· $500 to Adams

· $500 to Tan

15 May 2012:

· $498.13 to Tan

· $501.87 to Adams

15 June 2012:

· $500 to Adams

· $500 to Bryant

15 July 2012:

· $511.31 to Adams (Additional $11.31 this month to finalise Adams’ payment in full)

· $500 to Bryant

15 August 2012:

· $1000 to Bryant

15 September 2012:

· $934.61 to Bryant

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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