Fair Work Ombudsman v Raying Holding Pty Ltd - [2015] FCCA 36

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v RAYING HOLDING PTY LTD & ANOR

[2015] FCCA 36

Catchwords:
INDUSTRIAL LAW – Breaches of civil remedy provisions of the Fair Work Act 2009 – declarations of breach.

PRACTICE AND PROCEDURE – Default judgment for failure to file response or notice of address for service – declarations of breaches of the Fair Work Act 2009.

Legislation:

Fair Work Act 2009, ss.44, 45, 116, 357, 535, 536, 546

Fair Work Regulations 2009, regs.3.33, 3.34, 3.36, 3.37
Federal Circuit Court Rules 2001, rr.4.03, 6.01, 13.03A, 13.03B

Australian Building & Construction Commissioner v Abbott (No 3) [2011] FCA 340
Australian Competition & Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

RAYING HOLDING PTY LTD

ACN 144 614 175

Second Respondent:

ZU NENG SHI

File Number:

SYG 511 of 2014

Judgment of:

Judge Cameron

Hearing dates:

14 August and 18 December 2014

Date of Last Submission:

18 December 2014

Delivered at:

Sydney

Delivered on:

15 January 2015

REPRESENTATION

Counsel for the Applicant:

Ms V. McWilliam on 14 August 2014 and Ms C. Seymour of the Fair Work Ombudsman on 18 December 2014

Solicitor for the Applicant:

Mr M. Davidson of the Fair Work Ombudsman

No appearance by or on behalf of the First Respondent

Solicitors for the Second Respondent:

Ren Zhou

Upon the admissions which the First Respondent is deemed to have made consequent upon default by the First Respondent pursuant to Rule 13.03A(2) of the Federal Circuit Court Rules 2001

THE COURT DECLARES THAT:

The First Respondent has contravened the following civil remedy provisions:
(a)section 357 of the Fair Work Act 2009, by misrepresenting to Wei Hua Huang and Daying Quan that the contract under which each one was engaged to perform work for the First Respondent was a contract for services under which each of them would perform services as an independent contractor;
(b)section 45 of the Fair Work Act 2009 (by contravening clause 19 of the Meat Industry Award 2010), by failing to provide Kwok To Li, Kwok Chi Sum and Ling Hui Wang with their basic rate of pay;
(c)section 45 of the Fair Work Act 2009 (by contravening clause 15.9 of the Meat Industry Award 2010), by failing to provide Kwok To Li, Kwok Chi Sum, Ling Hui Wang and Jou Chian with their casual loading;
(d)section 45 of the Fair Work Act 2009 (by contravening clause 36.1(a) of the Meat Industry Award 2010), by failing to pay Wei Hua Huang, Daying Quan, Kwok To Li, Ho Hsuan Ching, Kwok Chi Sum, Ling Hui Wang, Hao-Cyun Sung, Po Lin Chen, Chun Jung Chiang and Jou Chian their applicable overtime rates for every hour worked as overtime;
(e)section 44 of the Fair Work Act 2009, by failing to pay Wei Hua Huang and Daying Quan for absences on public holidays during the period 3 October 2011 to 17 May 2013;
(f)subsection 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 36
Decision Date: 15 January 2015

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Raying Holding Pty Ltd in the Federal Court of Australia, alleging breaches of civil remedy provisions of the *Fair Work Act 2009* (Cth). The FWO sought declarations that Raying Holding Pty Ltd had contravened specific provisions of the Act.

The primary legal issue before the Court was whether to grant a default judgment against Raying Holding Pty Ltd for its failure to file a response or a notice of address for service within the prescribed timeframes. This failure meant the Court was asked to make declarations of breach based on the FWO's application and supporting material, without the respondent having formally contested the allegations.

Cameron J considered the FWO's application for default judgment in circumstances where the respondent had not participated in the proceedings. The Court applied the principles governing default judgments, which require the applicant to demonstrate a prima facie case for the relief sought. In this instance, the Court was satisfied that the FWO had established a sufficient case to warrant the declarations of breach sought, given the respondent's non-engagement with the proceedings.

The Court made declarations that Raying Holding Pty Ltd had breached the relevant civil remedy provisions of the *Fair Work Act 2009* as alleged by the Fair Work Ombudsman.

Orders