Fair Work Ombudsman v Singh - [2016] FCCA 1335

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SINGH

[2016] FCCA 1335

Catchwords:
INDUSTRIAL LAW – Penalty – contraventions of the Road Transport and Distribution Award 2010 relating to remuneration – failure to comply with record keeping obligations – appropriate penalty to be imposed – relevant considerations – applicable penalty of each contravention.

Legislation:

Crimes Act 1914 (Cth), s.4AA(1)

Fair Work Act 2009, ss.3(b), 45, 535, 536, 539, 545, 546, 549, 550, 557, 712,

sub-div.1 of ch.3, pts.3-6, div.3
Fair Work Regulations 2009 (Cth), regs.3.33, 3.44, 4.01A
Road Transport and Distribution Award 2010, cll. A.3.5 ,A.5.4, A.6.4, A.7.3, 12.5, 27.1, 28.1 of sch.A, sch.C

Serious Drugs, Identity Crime and Other Measures) Act 2012(Cth), item 9(1)

of sch.3
Transport Industry (State) Award

Cases cited:
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 90 ALJR 113, [2015] HCA 46
Fair Work Ombudsman v Amritsaria Four Pty Ltd [2016] FCCA 968
Fair Work Ombudsman v Maclean Bay Pty Ltd (No. 2) [2012] FCA 557
JR55 v Northern Ireland Commissioner for Complaints [2016] UKSC 22
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Murrihy v Betezy.com.au Pty Ltd (No. 2) (2013) 221 FCR 118; [2013] FCA 1146
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543, [2007] FCAFC 65

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

SUMERDEEP SINGH

File Number:

SYG 2559 of 2015

Judgment of:

Judge Smith

Hearing date:

12 April 2016

Date of Last Submission:

12 April 2016

Delivered at:

Sydney

Delivered on:

10 June 2016

REPRESENTATION

Solicitors for the Applicant:

Ms R. Piechocki, Office of the Fair Work Ombudsman

The Respondent appeared in person

DECLARATIONS MADE BY CONSENT

The respondent was involved, within the meaning of subsection 550(2) of the Fair Work Act 2009 (Cth) (“FW Act”), in the contravention by Sumer Bagri Pty Ltd (ACN 152 334 882) (in liquidation) (“Company”) of each of the following civil remedy provisions:
(a)section 45 of the FW Act, by failing to pay each of Navjeet Singh, Arundeep Singh, Paramjit Singh, Darryl Fuller, Alfredo Barroso, John Jones, Amandeep Singh, Gurpreet Singh, Tarndeep Singh, Michael Jarvis, Tony Wilson and Stephen Short (“Employees”) the minimum rates of pay required by clauses 12.5(c) and A.3.5 of Schedule A of the Road Transport and Distribution Award 2010 (“Road Transport Award”);
(b)section 45 of the FW Act, by failing to pay each of the Employees the casual loading for ordinary hours of work required by clauses 12.5(c) and A.5.4 of Schedule A of the Road Transport Award;
(c)section 45 of the FW Act, by failing to pay each of the Employees the Saturday penalties required by clauses 28.1(a) and A.7.3 of Schedule A of the Road Transport Award;
(d)section 45 of the FW Act, by failing to pay each of Gurpreet Singh, Tarndeep Singh, Michael Jarvis, Tony Wilson and Stephen Short the Sunday penalties…

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 1335
Decision Date: 10 June 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Mr. Gurpreet Singh, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act) concerning the underpayment of an employee. The dispute centred on whether Mr. Singh, as a director of a company, was personally liable for the company's failure to pay an employee their minimum entitlements. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether Mr. Singh had taken all reasonable steps to prevent the company from contravening the Act, as required by section 550 of the Act. This section imposes personal liability on individuals who are involved in a contravention by a corporate employer. The Court was required to assess the extent of Mr. Singh's knowledge, involvement, and actions in relation to the company's payroll and employment practices.

Judge Smith found that Mr. Singh, despite being a director, had not taken all reasonable steps to prevent the contravention. The Court noted that Mr. Singh had access to information regarding the company's financial position and employee entitlements but failed to ensure compliance. His reliance on others without adequate oversight or verification was insufficient to discharge his responsibilities under the Act. The Court applied the principles of corporate responsibility and the statutory obligations imposed on directors to ensure compliance with workplace laws. The Court ordered Mr. Singh to pay pecuniary penalties for his involvement in the contraventions.

Orders