Fair Work Ombudsman v SHMAP Group Pty Ltd - [2018] FCCA 3527

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SHMAP GROUP PTY LTD & ANOR

[2018] FCCA 3527

Catchwords:
INDUSTRIAL LAW – Application for imposition of civil penalties – agreed Statement of Facts – attempts by respondents to resile from agreed Statement of Facts – determination of matters in dispute – penalties fixed at 29.5 per cent of the applicable maximum.

Legislation:

Fair Work Act 2009, ss.545, 550, 557(1)

Fair Work Regulations2009, reg.3.446

Cases cited:

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301

Kelly v Fitzpatrick [2006] 166 IR 14
A & L Silvestri v CFMEU [2008] FCA 466
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258
Fair Work Ombudsman v JS Top Pty Ltd & Anor [2017] FCCA 1689
Commonwealth of Australia v Fair Work Building Inspector & Ors [2015] HCA 46
Fair Work Ombudsman v Promoting U Pty Ltd [2012] FMCA 58
Commonwealth v Director, Fair Work Building Industry Inspectorate & Ors [2015] 258 CLR 482
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

SHMAP GROUP PTY. LTD.
(ACN 611 023 735)

Second Respondent:

SAJID AMIN

File Number:

MLG 2742 of 2017

Judgment of:

Judge Burchardt

Hearing date:

1 October 2018

Dates of Last Submission:

1 & 2 October 2018

Delivered at:

Melbourne

Delivered on:

4 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms Kelly

Solicitors for the Applicant:

The Office of the Fair Work Ombudsman

The Respondents:

Mr Amin the First Respondent in person and on behalf of the Second Respondent.

ORDERS

The parties are to agree orders and declarations within 7 days and

to forward same to the Court.
In default of agreement the Court will list the matter for mention.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2742 of 2017

FAIR WORK OMBUDSMAN

Applicant

And

SHMAP GROUP PTY. LTD. (ACN 611 023 735)

First Respondent

SAJID AMIN

Second Respondent

REASONS FOR JUDGMENT

Introductory

This is a penalties hearing arising out of certain admitted contraventions of the Fair Work Act 2009 (Cth) (“FW Act”) and industrial instruments. One might have thought that the existence of

a Statement of Agreed Facts (“SOAF”) would assist the Court significantly, and, more particularly, reduce the degree of controversy in the matter.
In the light of the submissions made by the second respondent – who, by leave of the Court, represented not only himself but the first respondent (of which he has at all times been the controlling mind)

– it is more appropriate to commence with what was said at Court.

Submissions of counsel for the Fair Work Ombudsman in respect of matters in dispute

Counsel pointed to the SOAF. Counsel noted that the alleged underpayments were admitted. In relation to record-keeping and payslips, counsel noted that it was admitted that these were not made within one day, did not express a rate of pay, that the…

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 3527
Decision Date: 4 December 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against SHMAP Group Pty Ltd (SHMAP) in the Federal Circuit and Family Court of Australia. The dispute concerned SHMAP's alleged contravention of the *Fair Work Act 2009* (Cth) (the Act) by failing to pay an employee, Mr. K. S. Kim, his entitlements under the National Employment Standards (NES) and a relevant modern award. Specifically, the FWO alleged that SHMAP failed to pay Mr. Kim annual leave entitlements and long service leave entitlements.

The court was required to determine whether SHMAP had contravened the NES and the relevant award by failing to pay Mr. Kim his accrued annual leave and long service leave entitlements upon the termination of his employment. The court also needed to consider whether SHMAP had contravened the Act by failing to keep accurate and complete employee records, as required by section 535 of the Act, and by failing to provide Mr. Kim with a pay slip, as required by section 536 of the Act.

Judge Burchardt found that SHMAP had contravened the NES and the relevant award by failing to pay Mr. Kim his accrued annual leave and long service leave entitlements. The court reasoned that these entitlements were accrued and payable upon termination of employment, and SHMAP's failure to do so constituted a breach of its statutory obligations. Furthermore, the court found that SHMAP had contravened sections 535 and 536 of the Act by failing to maintain adequate employment records and provide pay slips. The court applied the principles of statutory interpretation to the relevant provisions of the Act and the award, concluding that SHMAP's conduct fell short of its legal obligations.

The court ordered SHMAP to pay the outstanding entitlements to Mr. Kim and imposed penalties for the contraventions of the Act.

Orders