Fair Work Ombudsman v Quickpoint Pty Ltd

Case [2022] FedCFamC2G 991

Federal Circuit and Family Court of Australia

(DIVISION 2)

Fair Work Ombudsman v Quickpoint Pty Ltd [2022] FedCFamC2G 991

File number: PEG 363 of 2020
Judgment of: JUDGE KENDALL
Date of judgment: 29 November 2022
Catchwords: INDUSTRIAL LAW – Penalty hearing – factors for consideration – nature, extent and circumstances of the contravening conduct – compliance with minimum standards – size and financial circumstances of the business – the need for specific and general deterrence – cooperation, corrective action and contrition – totality.
Legislation:

Corporations Act 2001 (Cth)

Crimes Act 1914 (Cth);

Fair Work Act 2009 (Cth), ss 3, 12, 14, 535, 536, 539, 546, 550, 687, 700, 701, 712, 718A, 793

Fair Work Regulations 2009 (Cth), reg 3.46

Workplace Relations Act 1996 (Cth)

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

Fair Work Ombudsman v ACN 052 182 180 Pty Ltd & Anor [2013] FCCA 688

Fair Work Ombudsman v Dosanjh [2016] FCCA 923

Fair Work Ombudsman v Han Investments Pty Ltd [2017] FCA 623

Fair Work Ombudsman v Malevi Pty Ltd & Ors [2020] FCCA 2875

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301

Fair Work Ombudsman v Soleimani & Anor [2014] CA 2380

Fair Work Ombudsman v Tac Pham Pty Ltd & Anor [2020] FCCA 3036

Jordan v Mornington Inn Pty Ltd [2007] FCA 1384

Kelly v Fitzpatrick [2007] FCA 1080

Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7

Mornington Inn v Jordan [2008] FCAFC 70

Plancor Pty Ltd v Liquor, Hospitality & Miscellaneous Union [2008] FCAFC 170

Ponzio v B & P Caelli Constructions Pty Ltd and Ors [2007] FCAFC 65

Trade Practices Commission v CSR Ltd [1990] FCA 521
Division: Division 2 General Federal Law
Number of paragraphs: 181
Date of hearing: 21 October 2022
Place: Perth
Counsel for the Applicant: Ms G Walker
Solicitor for the Applicant: Office of the Fair Work Ombudsman
Counsel for the Respondents: Mr J Dasey
Solicitor for the Respondents: Dasey Legal Pty Ltd

ORDERS

PEG 363 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FAIR WORK OMBUDSMAN

Applicant
AND:

QUICKPOINT PTY LTD (ACN 163 962 098)

First Respondent

AUGUSTINE LAWRENCE CHIA

Second Respondent

order made by:

JUDGE KENDALL

DATE OF ORDER:

29 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The first respondent pay a pecuniary penalty to the Commonwealth of Australia in the sum of $168,415 within 90 days of the date of this order.

2.The second respondent pay a pecuniary penalty to the Commonwealth of Australia in the sum of $24,580 within 90 days of the date of this order.

3.The applicant have liberty to apply on seven days’ notice in the event that order 1 or 2 above is not complied with.

Note: The form of…

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AGLC
Fair Work Ombudsman v Quickpoint Pty Ltd [2022] FedCFamC2G 991
Case
[2022] FedCFamC2G 991
Decision Date

CaseChat Overview and Summary

In the matter of Fair Work Ombudsman v Quickpoint Pty Ltd, the Court was tasked with reviewing allegations of contraventions of the Fair Work Act 2009 (Cth) by Quickpoint Pty Ltd, a company operating a café, and its director, Lawrence. The primary dispute centred around the classification and remuneration of two employees, Ms Curnow and Mr Garcia, who were employed on a casual basis. The Fair Work Ombudsman (FWO) alleged that Quickpoint Pty Ltd had failed to comply with certain provisions of the Fair Work Act and the Restaurant Industry Award 2010, specifically regarding the classification, payment, and record-keeping of the employees' hours and wages.

The court was required to determine whether Quickpoint Pty Ltd and Lawrence had contravened sections 539, 540, 542, and 543 of the Fair Work Act, and to decide on the appropriate remedies if any contraventions were found. The issues included whether the employees had written agreements of agreed hours, the correct classification and payment of their hours, and the accuracy of the pay slips issued. The court also considered whether the employees had been paid the correct minimum rates, including the casual loading and weekend rates as stipulated in the Restaurant Industry Award.

After reviewing the submissions and evidence presented by both parties, the court concluded that Quickpoint Pty Ltd had contravened sections 539, 540, 542, and 543 of the Fair Work Act. The court found that the employees did not have written agreements of agreed hours, were not paid the correct minimum rates, and the pay slips did not accurately reflect the hours worked and wages paid. The court found that Lawrence, as the director responsible for ensuring compliance, was also liable for these contraventions. Consequently, the court ordered Quickpoint Pty Ltd to pay pecuniary penalties and ordered Lawrence to pay a pecuniary penalty. Additionally, the court ordered the respondents to take specific steps to remedy the contraventions, including rectifying the employees' records and ensuring future compliance with the award and the Act.

Orders

Orders of the court

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Background

Background to the litigation

The Court has also reviewed and relied on the transcript of the parties’ oral submissions to the Court at the directions hearing held on 21 October 2022.Background The SOAF filed by the parties offers a detailed overview of the background facts. The Court notes and adopts that overview, which, having admitted the contraventions outlined above at 6, provides as follows. The PartiesThe Applicant The Applicant is:(a)a statutory appointee of the Commonwealth appointed by the Governor-General by written instrument pursuant to s 687(1) of the FW Act;(b)a Fair Work Inspector (“FWI”) pursuant to s 701 of the FW Act; and(c)a person with standing to bring these proceedings and apply for orders in respect of contraventions of civil remedy provisions under s 539(2) of the FW Act.The First Respondent The First Respondent is, and was at all material times:(a)a company incorporated under the Corporations Act 2001 (Cth) and registered since 27 May 2013;(b)a “constitutional corporation” within the meaning of s 12 of the FW Act;(c)a “national system employer” within the meaning of s 14 of the FW Act;(d)the entity that operated the Café; and(e)during the period 30 November 2015 to 11 November 2018 (the “Employment Period”), or part thereof, the employer of the Employees.The Second Respondent The Second Respondent, is and was at all material times:(a)a natural person capable of being sued;(b)also known as “Lawrence”;(c)the sole director of the First Respondent;(d)a person responsible for ensuring that the First Respondent complied with its duties under the FW Act;(e)a person who during the Employment Period was responsible for:(i)setting and adjusting rates of pay and determining wages paid to the First Respondent’s employees;(ii)making and/or keeping time and wage records for the First Respondent’s employees;(iii)preparing and issuing pay slips to the employees of the First Respondent, including the Employees;(iv)from time to time, supervising the Employees in the performance of their duties.(f)during the Employment Period, the person:(i)authorised to operate the bank account from which electronic funds transfer (“EFT”) payments were made to employees of the First Respondent, including the Employees;(ii)who calculated and made payments to the First Respondent’s employees, including the Employees, in both cash payments and by EFT;(g)received an email each day containing a record of the hours worked each day by employees of the First Respondent;(h)formerly a director of Golden Maple Pty Ltd and Cityteam Pty Ltd, which operated Japanese restaurants trading as ‘Shimizu’ in Perth; and(i)an officer, employee or agent of the First Respondent for the purposes of s 793(1) of the FW Act, whose conduct and state of mind is taken to be the conduct and state of mind of the First Respondent by reason of ss 793(1) and 793(2) of the FW Act.The Employees During the Employment Period, the First Respondent employed:(a)Ms Curnow from 30 November 2015 to 11 November 2018; and(b)Mr Garcia from 22 November 2017 to 30 September 2018.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Each of the Employees:(a)did not have a written agreement with the First Respondent of agreed hours to be worked during their employment, or any firm advanced commitment to continuing indefinite work according to an agreed pattern;(b)during their employment, worked varying hours each week according to a roster provided to them by the First Respondent on a weekly basis; and(c)were employed by the First Respondent on a casual basis.Remuneration The First Respondent paid Ms Curnow:(a)on a fortnightly basis in a combination of cash payments and by EFT;(b)from 30 November 2015 to 3 February 2018, a flat hourly rate of $15 per hour;(c)from on or around 4 February 2018 to 11 November 2018, a flat hourly rate of $16 per hour; and(d)the total fortnightly amounts set out in column 5 of Schedule 1 of the SOAF for the periods set out in column 1 of Schedule 1 of the SOAF, as follows: The First Respondent paid Mr Garcia:(a)on a fortnightly basis in a combination of cash payments and by EFT;(b)for the period from 22 November 2017 to 24 June 2018, a flat hourly rate of $15 per hour;(c)for the period from 25 June 2018 to 30 September 2018, a flat hourly rate of $16 per hour; and(d)the total fortnightly amounts set out in column 5 of Schedule 2 of the SOAF for the periods set out in column 1 of Schedule 2 of the SOAF, as follows: At the end of each pay period during their respective Employment Periods, the First Respondent gave each of the Employees a pay slip which contained the following information:(a)the Employee’s name;(b)the period for which the pay slip related;(c)the total cumulative number of hours worked in that period; and(d)the gross amount of the payment,(the “Employee Pay Slips”).Legislation and industrial instrument At all material times, the First Respondent was bound by the FW Act in respect of the Employees’ employment. At all material times, and by reason of the matters admitted (see paragraph 16(d) above), the Restaurant Industry Award 2010 (the “Restaurant Award”) covered and applied to the First Respondent in respect of the employment of the Employees.Classification By reason of the matters admitted (see above at paragraphs 19 and 20), Ms Curnow and Mr Garcia were classified under Schedule B of the Restaurant Award, as follows: During their respective Employment Periods, pursuant to clause 20.1 of the Restaurant Award, the First Respondent was required to pay the Employees the following minimum rates (“Minimum Rates”) for ordinary hours worked on a Monday to Friday: Pursuant to clause 13.1 of the Restaurant Award, the First Respondent was required to pay each of the Employees, in addition to the Minimum Rate, a casual loading of 25 percent of their applicable Minimum Rate (“Casual Loading”) for all ordinary hours worked on a Monday to Friday. Pursuant to clause 34.1 of the Restaurant Award, the First Respondent was required to pay the Employees 150 percent of their applicable Minimum Rate for ordinary hours worked on Saturdays and Sundays (the “Weekend Rates”).