Fair Work Ombudsman v Skyter Trade Pty Ltd - [2018] FCCA 1483

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SKYTER TRADE PTY LTD & ANOR [2018] FCCA 1483

Catchwords:
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – assessing penalty – deterrence.

INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – course of conduct.

INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – totality and proportionality.

Legislation:

Crimes Act 1914 (Cth), s.4AA

Fair Work Act 2009 (Cth), ss.44(1), 50, 125(1), 357(1), 535(1), 539(2), 546(2)(a), 550(1), 557(1), 712(3)

Fair Work Regulations 2009 (Cth), regs.3.32, 3.33, 3.34, 3.44(6), 3.44(1)

Cases cited:

Fair Work Ombudsman v Amritsaria Four Pty Ltd [2016] FCCA 968

Fair Work Ombudsman v Civic National Pty Ltd [2016] FCCA 2459
Fair Work Ombudsman v ECFF Pty Ltd [2014] FCCA 2996
Fair Work Ombudsman v EJ Group International Pty Ltd [2017] FCCA 997
Fair Work Ombudsman v Kang [2017] FCCA 1010
Fair Work Ombudsman v Maclean Bay Pty Ltd (No.2) [2012] FCA 557
Fair Work Ombudsman v Mai Pty Ltd [2016] FCCA 1481
Fair Work Ombudsman v Mamak Pty Ltd [2016] FCCA 2104
Fair Work Ombudsman v Oz Staff Career Services Pty Ltd [2016] FCCA 105
Fair Work Ombudsman v Rubee Enterprises Pty Ltd [2016] FCCA 3456
Fair Work Ombudsman v Shaik [2016] FCCA 2345
Fair Work Ombudsman v Singh [2016] FCCA 1335
Fair Work Ombudsman v Ultra Tune Australia Ltd (2012) 225 IR 326
Fair Work Ombudsman v Little Vienna Pty Ltd [2017] FCCA 916
Markarian v The Queen (2005) 228 CLR 351

Applicant: FAIR WORK OMBUDSMAN

First Respondent: SKYTER TRADE PTY LTD

Second Respondent: DONG ZHAO

File Number: BRG 492 of 2017

Judgment of: Judge Jarrett

Hearing date: 26 October 2017

Date of Last Submission: 26 October 2017

Delivered at: Brisbane

Delivered on: 8 June 2018
REPRESENTATION

Counsel for the Applicant: Mr Tan

Solicitors for the Applicant: Office of the Fair Work Ombudsman

Counsel for the Respondents: Mr Leung

Solicitors for the Respondents: Peak Lawyers
ORDERS
THE COURT DECLARES THAT:
(1)The first respondent contravened the following civil remedy provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009:
(a)s.357, by representing to Mr Humit Vijan that the contract of employment under which he performed work for the first respondent was a contract for services under which he performed work as an independent contractor;
(b)s.50, by failing to pay Mr Humit Vijan his minimum hourly rate in accordance with clause 9 of the Pizza Hut Queensland – SDA Employee Relations Enterprise Agreement 2014;
(c)s.50, by failing to pay Mr Humit Vijan the per delivery amount in accordance with clause 9 of the Pizza Hut Queensland – SDA Employee Relations Enterprise Agreement 2014;
(d)s.50, by failing to pay overtime rates to Mr Humit Vijan in accordance with clause 14 of the Pizza Hut Queensland – SDA Employee Relations Enterprise Agreement 2014;
(e)s.50, by failing…

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 1483
Decision Date: 8 June 2018

CaseChat Overview and Summary

The Fair Work Ombudsman brought proceedings against Skyter Trade Pty Ltd in the Federal Circuit and Family Court of Australia concerning alleged contraventions of the *Fair Work Act 2009* (Cth). The dispute centred on the company's failure to comply with its obligations under the Act, leading to the Ombudsman seeking pecuniary penalty orders against Skyter Trade Pty Ltd.

The primary legal issue before the Court was the assessment of an appropriate pecuniary penalty for the contraventions. This involved considering the principles of deterrence, both specific and general, and ensuring that the penalty imposed was proportionate to the seriousness of the conduct and the overall circumstances of the case. The Court was required to determine the quantum of the penalty by reference to the totality of the contravening conduct.

In assessing the penalty, Judge Jarrett applied established principles for determining pecuniary penalties under the *Fair Work Act*. The Court considered the nature and extent of the contraventions, the impact on employees, and the need to deter future non-compliance by the employer and others in the industry. The assessment took into account the totality of the offending conduct, ensuring that the penalty reflected the cumulative effect of the breaches and was proportionate to the objective seriousness of the offending conduct. The Court ultimately made orders for the payment of a pecuniary penalty by Skyter Trade Pty Ltd.

Orders