Fair Work Ombudsman v Saveway Store Pty Ltd - [2020] FCCA 3042

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SAVEWAY STORE PTY LTD & ANOR [2020] FCCA 3042

Catchwords:
INDUSTRIAL LAW – Penalty hearing – failure to abide by compliance notice under the Fair Work Act 2009 (Cth) – involvement of second respondent in contraventions – appropriate penalty.

Legislation:

Evidence Act 1995 (Cth), s.191,

Fair Work Act 2009 (Cth), ss. 45, 536, 539, 545, 546, 550, 716

Fair Work Regulations 2009 (Cth), r.3.46

Cases cited:

Kelly v Fitzpatrick [2007] FCA 1080

Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655

Fair Work Ombudsman v Scott Redmond trading as Cleaning Excellence [2019] FCCA 3697

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

BlueScope Steel Limited v The Australian Worker’s Union [2019] FCA 182

Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655

Ponzio v B & P Caeli Constructions Pty Ltd [2007] FCAFC 65

Applicant: FAIR WORK OMBUDSMAN

First Respondent: SAVEWAY STORE PTY LTD
(ACN 149 194 329)

Second Respondent: SON THANH NGUYEN

File Number: MLG 4476 of 2019

Judgment of: Judge O'Sullivan

Hearing date: On the papers

Date of Last Submission: 3 November 2020

Delivered at: Melbourne

Delivered on: 12 November 2020
REPRESENTATION

Solicitors for the Applicant: Fair Work Ombudsman

Solicitors for the First and Second Respondents:
R B Legal Barristers & Solicitors

ORDERS
THE COURT DECLARES THAT:
(1) The first respondent, Saveway contravened:
(a)section 716(5) of the Fair Work Act 2009 (Cth) (FW Act), by failing to comply with the Compliance Notice issued on 17 July 2019; and
(b)section 536(2) of the FW Act, by failing to give pay slips which included information prescribed by regulation 3.46(5) of the Fair Work Regulations 2009 (Cth).

(collectively, the Contraventions)
(2)The Second Respondent, Son Thanh Nguyen, pursuant to s.550 of the FW Act, was involved in the First Respondent’s contravention of s.716(5).

THE COURT ORDERS THAT:
(3)The First Respondent take the steps that were required by the Compliance Notice by:
(a)within 28 days calculating the outstanding entitlements it was required to pay the Employees, including superannuation;
(b)within 60 days paying the outstanding entitlements it was required to pay the Employees referred to in order 3(a) above, to the Commonwealth Consolidated Revenue Fund (on behalf of the Employees);
(c)within 60 days calculating and paying superannuation into the Employees’ nominated superannuation fund for additional superannuation contributions it was required to pay on the outstanding entitlements referred to in order 3(b) above (as required by clause 30.2 of the Restaurant Industry Award 2020); and
(d)within 60 days preparing and producing to the Applicant, a schedule outlining its calculation of the outstanding entitlements it was required to pay the Employees referred to in order 3(a) above, and providing proof that the outstanding entitlements were rectified as set out in orders 3(b) and 3(c);

(4)The First Respondent pay interest on the amounts owed to the Employees pursuant to order 3(b) above, to the Commonwealth Consolidated Revenue Fund within 60 days of this order, pursuant to section 547(2) of the FW…

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: [2020] FCCA 3042
Decision Date: 12 November 2020

CaseChat Overview and Summary

The Fair Work Ombudsman commenced proceedings in the Federal Circuit Court of Australia against Saveway Store Pty Ltd and Mr. Kosta Kourounis, alleging contraventions of the *Fair Work Act 2009* (Cth) by failing to comply with a notice issued under section 587 of the Act. The dispute concerned Saveway Store Pty Ltd's failure to provide records and information as required by the compliance notice, and Mr. Kourounis's alleged involvement in these contraventions.

The court was required to determine whether Saveway Store Pty Ltd had contravened the notice and, if so, to assess the appropriate penalty for this contravention. Additionally, the court needed to determine whether Mr. Kourounis was involved in the contraventions by Saveway Store Pty Ltd and, if so, to assess the appropriate penalty for his involvement.

Judge O'Sullivan found that Saveway Store Pty Ltd had contravened the compliance notice by failing to provide the requested records and information. The court determined that Mr. Kourounis was involved in these contraventions, acting as a director and manager of the company. In assessing penalties, the court considered the objective seriousness of the contraventions, the need for deterrence, and the fact that the company had not previously been penalised under the Act. The court also took into account the limited financial capacity of the company and Mr. Kourounis.

Consequently, Saveway Store Pty Ltd was ordered to pay a penalty of $1,500, and Mr. Kosta Kourounis was ordered to pay a penalty of $300.

Orders