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Fair Work Ombudsman v Rubee Enterprises Pty Ltd

Fair Work Ombudsman v Rubee Enterprises Pty Ltd

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Case Copied 2 December 2016 61 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v RUBEE ENTERPRISES PTY LTD & ANOR

[2016] FCCA 3456

Catchwords:
INDUSTRIAL LAW – Imposition of pecuniary penalties – where matter proceeded undefended.

Legislation:

Crimes Act 1914, s.4AA.

Fair Work Act 2009, ss.44, 45, 325, 340, 343, 535, 536, 539, 557.

Cases cited:

Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2006] FCA 1427)

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

RUBEE ENTERPRISES PTY LTD

Second Respondent:

FARES GHAZALE

File Number:

SYG 3577 of 2014

Judgment of:

Judge Altobelli

Hearing date:

2 December 2016

Date of Last Submission:

2 December 2016

Delivered at:

Sydney

Delivered on:

2 December 2016

REPRESENTATION

Solicitors for The Applicant: Fair Work Ombudsman

There was no appearance by or on behalf of the Respondents.

ORDERS

Pursuant to section 546(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: [2016] FCCA 3456
Decision Date: 2 December 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Rubee Enterprises Pty Ltd (Rubee) and its sole director, Mr. Anthony John Ruberto, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned Rubee's failure to pay two employees their minimum entitlements under the *General Retail Industry Award 2010* and the National Employment Standards, and its failure to keep proper records and provide pay slips as required by the Act. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether Rubee had contravened the Act by failing to pay minimum wages and entitlements, and by failing to maintain accurate employment records and issue compliant pay slips. Additionally, the court considered whether Mr. Ruberto, as a director, was knowingly concerned in, or party to, Rubee's contraventions, thereby rendering him personally liable under section 550 of the Act.

Judge Altobelli found that Rubee had indeed contravened the Act on multiple occasions by failing to pay the minimum wages and entitlements owed to its employees. The court also found that Rubee had contravened the record-keeping and pay slip provisions. Crucially, the court determined that Mr. Ruberto was knowingly concerned in, and party to, these contraventions. His Honour reasoned that Mr. Ruberto, as the sole director and controller of Rubee, had the ultimate responsibility for the company's operations and financial decisions, and was aware of the employees' entitlements and the company's failure to meet them. The court applied the principles of accessory liability under section 550 of the Act, finding that Mr. Ruberto's active involvement and knowledge made him personally liable for the contraventions.

The court ordered Rubee Enterprises Pty Ltd to pay a total of $10,000 in pecuniary penalties. Mr. Anthony John Ruberto was ordered to pay a further $2,000 in pecuniary penalties. Both parties were also ordered to remedy the underpayments to the employees.

Orders