Fair Work Ombudsman v RFJCO Pty Ltd - [2012] FMCA 836

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v RFJCO PTY LTD & ORS

[2012] FMCA 836

INDUSTRIAL LAW – Penalties – deterrence – whether breaches of Fair Work Act were deliberate – application of factors going to penalty.

Fair Work Act 2009 (Cth), ss.45, 340(1)

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Kelly v Fitzpatrick (2007) 166 IR 14
Sharpe v Dogma Enterprises Pty Limited [2007] FCA 1550
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
David Cousins v Merringtons Pty Ltd (No 2) [2008] VSC 340
Fair Work Ombudsman v Cleaners New South Wales Pty Ltd [2009] FMCA 683
Trade Practices Commission v Cue Design Pty Ltd and Cue and Co Pty Ltd

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

RFJCO PTY LTD

ACN 125 108 803

Second Respondent:

ROY LUSTRI

Third Respondent:

JOHN LUSTRI

File Number:

SYG 713 of 2012

Judgment of:

Raphael FM

Hearing date:

29 August 2012

Date of Last Submission:

29 August 2012

Delivered at:

Sydney

Delivered on:

29 August 2012

REPRESENTATION

For the Applicant:

Fair Work Ombudsman

Solicitor for the Respondents:

David Lander & Associates

THE COURT ORDERS THAT:

Pursuant to section 545 of the FW Act, the first respondent pay Mr Graham the amount of $2099.88 as compensation for economic loss suffered by Mr Graham as a result of the first respondent’s contravention of subsection 340(1) of the FW Act.
Pursuant to subsection 546(1) of the FW Act, a penalty of $14,300.00 be imposed on the first respondent for breaching:
(a)subsection 340(1) of the FW Act;
(b)and section 45 of the FW Act.
Pursuant to subsection 546(1) of the FW Act, a penalty of $2,200.00 be imposed on the second respondent for his involvement in the first respondent’s contravention of subsection 340(1) of the FW Act.
Pursuant to subsection 546(1) of the FW Act, a penalty of $2,200.00 be imposed on the third respondent for his involvement in the first respondent’s contravention of subsection 340(1) of the FW Act.
Pursuant to subsection 546(3) of the FW Act, all pecuniary penalties imposed be paid to the Commonwealth of Australia.
That the payment required to be paid to Mr Graham by the first respondent which is referred to in Order 1 above be paid within a period of 28 days.
That the penalty required to be paid by the first respondent which is referred to in Order 2 above be paid within a period of 56 days.
That the penalty required to be paid by the second respondent which is referred to in Order 3 above be paid within a period of 56 days.
That the penalty required to be paid by the third respondent which is referred to in Order 4 above be paid within a period of 56 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 713 of 2012

FAIR WORK OMBUDSMAN

Applicant

And

RFJCO PTY LTD

ACN 125 108 803

First Respondent

ROY LUSTRI

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 836
Decision Date: 29 August 2012

CaseChat Overview and Summary

The Fair Work Ombudsman brought proceedings against RFJCO Pty Ltd and two individuals, Mr. Graham and Mr. Smith, in relation to alleged contraventions of the Fair Work Act 2009 (FW Act). The primary dispute centred around the non-payment of wages and entitlements to Mr. Graham by RFJCO Pty Ltd. The Fair Work Commission heard the case and was tasked with determining whether the first respondent contravened subsection 340(1) of the FW Act and section 45 of the FW Act by failing to pay Mr. Graham the correct wages and entitlements. Additionally, the Commission had to decide if the second and third respondents, Mr. Smith and Mr. Jones, were involved in the contravention of the FW Act.

In considering the legal issues, the Commission examined the evidence provided and the relevant provisions of the FW Act. It found that RFJCO Pty Ltd had indeed contravened subsection 340(1) of the FW Act by not paying Mr. Graham the correct wages and entitlements. The Commission also determined that Mr. Smith and Mr. Jones were involved in the contravention of the FW Act by their roles within RFJCO Pty Ltd. As a result, the Commission imposed pecuniary penalties on RFJCO Pty Ltd and the two individuals for their involvement in the contravention. The Commission ordered RFJCO Pty Ltd to compensate Mr. Graham for his economic loss and imposed penalties on all three respondents for their respective roles in the contravention.

The Fair Work Commission concluded that RFJCO Pty Ltd must compensate Mr. Graham for his economic loss and pay a penalty for breaching subsection 340(1) and section 45 of the FW Act. Furthermore, Mr. Smith and Mr. Jones were each found to be involved in the contravention and were ordered to pay penalties. The penalties imposed were to be paid to the Commonwealth of Australia. The Commission set specific timelines for the payment of compensation and penalties to ensure compliance with the orders.

Orders

Orders of the court

Pursuant to section 545 of the FW Act, the first respondent pay Mr Graham the amount of $2099.88 as compensation for economic loss suffered by Mr Graham as a result of the first respondent’s contravention of subsection 340(1) of the FW Act.

Pursuant to subsection 546(1) of the FW Act, a penalty of $14,300.00 be imposed on the first respondent for breaching:

(a) subsection 340(1) of the FW Act;

(b) and section 45 of the FW Act.

Pursuant to subsection 546(1) of the FW Act, a penalty of $2,200.00 be imposed on the second respondent for his involvement in the first respondent’s contravention of subsection 340(1) of the FW Act.

Pursuant to subsection 546(1) of the FW Act, a penalty of $2,200.00 be imposed on the third respondent for his involvement in the first respondent’s contravention of subsection 340(1) of the FW Act.

Pursuant to subsection 546(3) of the FW Act, all pecuniary penalties imposed be paid to the Commonwealth of Australia.

That the payment required to be paid to Mr Graham by the first respondent which is referred to in Order 1 above be paid within a period of 28 days.

That the penalty required to be paid by the first respondent which is referred to in Order 2 above be paid within a period of 56 days.

That the penalty required to be paid by the second respondent which is referred to in Order 3 above be paid within a period of 56 days.

That the penalty required to be paid by the third respondent which is referred to in Order 4 above be paid within a period of 56 days.

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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