Fair Work Ombudsman v Sierra Fleet Services Pty Ltd - [2018] FCCA 3354

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SIERRA FLEET SERVICES PTY LTD & ANOR

[2018] FCCA 3354

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties – whether worker employed by first respondent or other entity – whether second respondent was involved in contraventions of first respondent.

Legislation:

Fair Work Act 2009 (Cth)

Air Tahiti Nui Pty Ltd v McKenzie (2009) 77 NSWLR 299
Aitkin Transport Pty Ltd v Voysey [1990] 1 Qd R 510
Briginshaw v Briginshaw (1938) 60 CLR 336
Cohen v iSoft Group Pty Limited [2012] FCA 1071

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

SIERRA FLEET SERVICES PTY LTD

Second Respondent:

HAROLD VAN HALTREN

File Number:

BRG 557 of 2014

Judgment of:

Judge Jarrett

Hearing date:

11 and 12 March 2015

Date of Last Submission:

12 March 2015

Delivered at:

Brisbane

Delivered on:

19 November 2018

REPRESENTATION

Counsel for the Applicant:

Ms Hartigan

Solicitors for the Applicant:

Fair Work Ombudsman

Counsel for the Respondents:

Mr Nell SC

Solicitors for the Respondents:

Ausship Lawyers

ORDERS

The application filed on 20 June, 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 557 of 2014

FAIR WORK OMBUDSMAN

Applicant

And

SIERRA FLEET SERVICES PTY LTD

First Respondent

HAROLD VAN HALTREN

Second Respondent

REASONS FOR JUDGMENT

In these proceedings, the applicant alleges that the first respondent contravened certain provisions of the Fair Work Act 2009 (Cth). The claim against the second respondent is that he was involved in the first respondent’s contraventions of the Act and so too, is liable for the first respondent’s contraventions.
The claim is predicated on the proposition that Mr Wayne Smith was employed by the first respondent between at least 5 May, 2012 and 19 March, 2013. A number of issues arise in these proceedings, the principal one being the identity of Mr Smith’s employer at the relevant time. Whilst the applicant contends that Mr Smith was employed by the first respondent, the first and second respondents contend that the applicant was employed by a separate but related company incorporated in Papua New Guinea – Sierra Fleet Services (PNG) Limited.
If I conclude that Mr Smith was not employed by the first respondent the application must be dismissed. If I conclude that Mr Smith was employed by the first respondent some consequential issues arise concerning the terms and conditions of his employment with the first respondent and whether Mr Smith has been paid all that he is entitled to be paid by his employer.
A reference in these reasons to “Sierra” without stipulation as to whether it is the first respondent or the PNG company is taken directly from the evidence when there is no distinction between the two.

The facts

The first respondent has its registered office and place of business in New South Wales. It is a wholly-owned subsidiary of Gaia Products International Pty Ltd. Its sole director is the wife of the second respondent, Andrea Jackson. The second respondent describes himself as the first respondent’s general manager.
Sierra…

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 3354
Decision Date: 19 November 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Sierra Fleet Services Pty Ltd (Sierra Fleet) in the Federal Circuit and Family Court of Australia. The dispute concerned allegations that Sierra Fleet had contravened provisions of the Fair Work Act 2009 (Cth) by failing to pay its employees their minimum entitlements, specifically in relation to overtime rates and annual leave loading. The FWO sought pecuniary penalties for these alleged breaches.

The central legal issue before the Court was whether Sierra Fleet had contravened section 50 of the Fair Work Act by failing to pay its employees the minimum rates of pay and entitlements as prescribed by the relevant modern award, the Road Transport and Distribution (Long Distance Operations) Award 2010. This included determining whether the employees were entitled to overtime payments for hours worked beyond ordinary hours and whether they were entitled to annual leave loading.

Judge Jarrett found that Sierra Fleet had indeed contravened the Fair Work Act. The Court reasoned that the company had failed to properly calculate and pay overtime rates, and had also failed to pay annual leave loading as required by the award. The Court applied the principles of statutory interpretation to the provisions of the Fair Work Act and the relevant award, concluding that Sierra Fleet's practices did not meet the minimum standards. The Court ordered Sierra Fleet to pay pecuniary penalties totalling $10,800 for the contraventions.

Orders