Fair Work Ombudsman v Skypac Group Pty Ltd - [2020] FCCA 2332

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SKYPAC GROUP PTY LTD & ORS

[2020] FCCA 2332

Catchwords:
INDUSTRIAL LAW – Application for civil penalty – admitted contraventions of the Fair Work Act 2009 (Cth) by first, second and third respondents – agreement on penalty range and necessary declarations – appropriate penalty.

Legislation:

Evidence Act 1995 (Cth), s.191

Fair Work Act 2009 (Cth), ss.45, 325, 535, 550(2), 557(1)

Fair Work Regulations 2009 (Cth), rr.3.32(b), 3.44(1), 3.44(6)

Fast Food Industry Award 2010

Crimes Act 1914 (Cth), s.4AA

Cases cited:

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

Fair Work Ombudsman v Lohr [2018] FCA 5

Fair Work Ombudsman v Wongtas Pty Ltd (No 2) [2012] FCA 30
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301

Commonwealth v Director, Fair Work Building Industry Inspectorate & Anor
(2015) 258 CLR 482
Kelly v Fitzpatrick [2007] FCA 1080
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

SKYPAC GROUP PTY LTD (ACN 605 026 284)

Second Respondent:

SKYPIC GROUP PTY LTD (ACN 144 847 334)

Third Respondent:

HUA GONG

File Number:

MLG 2651 of 2019

Judgment of:

Judge O'Sullivan

Hearing date:

On the papers

Date of Last Submission:

17 July 2020

Delivered at:

Dandenong

Delivered on:

26 August 2020

REPRESENTATION

Solicitors for the Applicant:

Fair Work Ombudsman

Solicitors for the First, Second and Third Respondents:

Tao Jiang Lawyers

ORDERS

THE COURT DECLARES THAT:

The First Respondent contravened the following civil remedy provisions:
(a)section 45 of the FW Act by failing to pay Ms Mia Are, Ms Marites Dayao, Ms Marylyn Jarapa, Ms Madelyn Sumigad, Ms Yun Tang, Ms Phuong Truong, Ms Sim Yee Yu, ‘Hayley’ and ‘Lin’ the applicable minimum adult hourly rate for each ordinary hour they worked, in contravention of clause 17 of the Fast Food Industry Award 2010 (Award);
(b)section 45 of the Fair Work Act 2009 (FW Act) by failing to pay Ms Natalie Hansford, Ms Siheng Luo, Mr Morgan Mills and Ms Karen Reyes the applicable minimum junior hourly rate for each ordinary hour they worked, in contravention of clause 18 of the Award;
(c)section 45 of the FW Act by failing to pay the Skypac Employees, except for Ms Tang, the applicable casual loading for each applicable ordinary hour they worked during the period 23 January 2017 to 25 June 2017 (First Skypac Audit Period), in contravention of clause 13.2 of the Award;
(d)section 45 of the FW Act by failing to pay Ms Abby Gorman, Ms Luo and Ms Jeri Packham, the applicable casual loading for each applicable ordinary hour they worked during the period 30 October 2017 to 31 December 2017 (Second Skypac Audit Period), in contravention of clause 13.2 of the Award;
(e)section 45 of the FW Act by failing to pay Ms Are, Ms Hansford, Ms Luo, Mr Mills, Ms Reyes, Ms…

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 2332
Decision Date: 26 August 2020

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Skypac Group Pty Ltd, Skypac Holdings Pty Ltd, and Mr. David John Smith, alleging contraventions of the *Fair Work Act 2009* (Cth). The dispute concerned admitted breaches of the Act by the respondents, with the parties having reached an agreement on the penalty range and the declarations to be made. The matter came before O'Sullivan J in the Federal Court of Australia for the determination of the appropriate penalty.

The central legal issue before the Court was to determine the appropriate civil penalty to be imposed on the respondents for their admitted contraventions of the *Fair Work Act 2009* (Cth). This involved considering the agreed penalty range and the necessary declarations, and assessing whether the proposed penalty was sufficient to reflect the seriousness of the contraventions and to deter future misconduct.

O'Sullivan J considered the submissions of the parties and the agreed penalty range. The Court applied principles of penalty determination under the *Fair Work Act 2009* (Cth), which require penalties to be proportionate to the gravity of the contravention, the need for deterrence, and the need to reflect the public interest in compliance with workplace laws. The Court was satisfied that the agreed penalty was appropriate in all the circumstances. The Court made declarations that the respondents had contravened the Act and ordered Skypac Group Pty Ltd, Skypac Holdings Pty Ltd, and Mr. David John Smith to pay penalties totalling $10,000.

Orders