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Fair Work Ombudsman v Rum Runner Trading Pty Ltd

Fair Work Ombudsman v Rum Runner Trading Pty Ltd

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Case Copied 9 May 2018 64 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v RUM RUNNER TRADING PTY LTD & ANOR

[2018] FCCA 1129

Catchwords:
INDUSTRIAL LAW – Breaches of civil remedy provisions of the Fair Work Act 2009 (Cth) (“the Act”) – two proceedings initiated by applicant for the imposition of pecuniary penalties on respondents – each proceeding involved different employees – two statements of agreed facts made by the parties – admitted numerous contraventions of the Act and Fair Work Regulations 2009 (Cth) (“the Regulations”) – relevant considerations – separate declarations made regarding admitted contraventions in each proceeding – separate orders made for imposition of pecuniary penalties in each proceeding – orders made in second proceeding for the purpose of securing future compliance by the respondents with the Act and the Regulations requiring respondents to take action and restraining respondents from engaging in contravening conduct – penalties imposed.

Legislation:

Crimes Act 1914 (Cth), s.4AA

Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth), sch.1 item 2
Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth), sch.3 item 7

Evidence Act 1995 (Cth), s.191

Fair Work Act 2009 (Cth), ss.3(b), 12, 44, 45, 125(1), 535(1), 536(1), 539(2), 545, 546, 547(2), 550, 557, 559, 712, 716

Fair Work Regulations 2009 (Cth), regs.3.33, 3.44, 4.01A, 4.03A, ch.3 pt.3-6 div.3 sub-div.1

Restaurant Industry Award 2010, cls.13.1, 20.1, 27.2, 32.1, 34.1, 34.2

Explanatory Memorandum, Fair Work Bill 2008 (Cth)

Cases cited:

Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No.2) [2010] FCA 977
Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited [2001] FCA 383
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Anor [2015] HCA 46
Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413

Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59

Fair Work Ombudsman v Absynthe Restaurant Pty Ltd [2015] FCCA 58

Fair Work Ombudsman v AJR Nominees Pty Ltd (No.2) [2014] FCA 128
Fair Work Ombudsman v Bundaberg Security Pty Ltd [2014] FCCA 592
Fair Work Ombudsman v Dosanjh [2016] FCCA 923
Fair Work Ombudsman v Go Yo Trading Pty Limited & Anor [2012] FMCA 865
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No.2) [2017] FCA 557
Fair Work Ombudsman v Han Investments Pty Ltd [2017] FCA 623
Fair Work Ombudsman v Hiyi Pty Ltd & Ors [2016] FCCA 1634

Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151

Fair Work Ombudsman v Maclean Bay Pty Ltd (No.2) [2012] FCA 557

Fair Work Ombudsman v Nerd Group Australia Pty Ltd (No.2) [2012] FMCA 6

Fair Work Ombudsman v Sonisolar Pty Ltd & Anor [2016] FCCA 2027
Fair Work Ombudsman v South Jin Pty Ltd (No.2) [2016] FCA 832

Fair Work Ombudsman v Sureguard Security Pty Ltd [2017] FCA…

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: [2018] FCCA 1129
Decision Date: 9 May 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Rum Runner Trading Pty Ltd (the Company) in the Federal Circuit and Family Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by the Company, specifically in relation to the underpayment of wages to an employee. The FWO sought pecuniary penalties and orders for the recovery of the outstanding wages.

The central legal issue before the Court was whether the Company had contravened section 50 of the *Fair Work Act 2009* (Cth) by failing to pay an employee the minimum wages and entitlements due under the applicable modern award. The Court was required to determine the correct interpretation and application of the relevant award provisions to the employee's employment, and consequently, whether the Company's payment practices resulted in an underpayment.

Judge Jones found that the Company had indeed contravened the *Fair Work Act 2009* (Cth) by failing to pay the employee the minimum wages and entitlements as required by the relevant modern award. The Court's reasoning focused on the specific terms of the award and the factual circumstances of the employee's work, concluding that the Company had misclassified the employee and failed to provide entitlements such as overtime and penalty rates. The Court applied the principles of statutory interpretation to the award provisions and considered the evidence presented regarding the employee's duties and hours of work.

The Court ordered the Company to pay the outstanding wages to the employee and imposed pecuniary penalties for the contraventions of the *Fair Work Act 2009* (Cth).

Orders