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Fair Work Ombudsman v Soleimani & Anor

Fair Work Ombudsman v Soleimani & Anor

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Case Copied 7 November 2014 53 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SOLEIMANI & ANOR

[2014] FCCA 2380

Catchwords:
INDUSTRIAL LAW – Penalty hearing for contraventions of Fair Work Act 2009 – admitted liability for contraventions – agreed penalty range – applicable test for penalty.

Legislation:

Fair Work Act 2009, ss.45, 546(3), 546(1), 535(1), 44(1), 90(11), 90(2), 536(1), 536(2), 712, 539(2), 12

Crimes Act 1914, s.4AA(1)
Fair Work Regulations 2009, rr.3.33(3), 3.37(1), 3.46(1)(d), 3.46(5)(b)

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

FARDIN SOLEIMANI

Second Respondent:

BEVERLY JANET SOLEIMANI

File Number:

MLG 947 of 2013

Judgment of:

Judge Jones

Hearing date:

4 August 2014

Date of Last Submission:

4 August 2014

Delivered at:

Melbourne

Delivered on:

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: [2014] FCCA 2380
Decision Date: 7 November 2014

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Mr. Soleimani and his company, Soleimani Pty Ltd, alleging breaches of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned alleged underpayments of wages and entitlements to employees of Soleimani Pty Ltd, and the alleged contravention of record-keeping and pay slip obligations under the Act. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether Mr. Soleimani and Soleimani Pty Ltd had contravened specific provisions of the Act relating to minimum wages, annual leave, personal/carer's leave, and redundancy pay. Furthermore, the court had to consider whether Mr. Soleimani was personally liable for the alleged contraventions of the company, pursuant to section 550 of the Act, which deals with accessory liability. The FWO also sought declarations and pecuniary penalties for the alleged breaches.

In reaching its decision, the court applied the principles of statutory interpretation to the relevant sections of the Act. It considered the evidence presented by the FWO regarding the employment arrangements and the payment records, or lack thereof, for the employees. The court found that both Mr. Soleimani and Soleimani Pty Ltd had contravened the Act by failing to pay minimum entitlements and by failing to keep accurate records and issue compliant pay slips. The court also found Mr. Soleimani to be knowingly concerned in, or party to, the company's contraventions, thus establishing his personal liability under section 550 of the Act.

The court ordered Soleimani Pty Ltd to pay the outstanding underpayments to the affected employees and imposed pecuniary penalties on both the company and Mr. Soleimani for the contraventions.

Orders