Legal Research
Cases
Fair Work Ombudsman v Something Aussie Pty Ltd

Fair Work Ombudsman v Something Aussie Pty Ltd

Case [2017] FCCA 186 6 February 2017

Type to search within this case.

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SOMETHING AUSSIE PTY LTD & ANOR

[2017] FCCA 186

Catchwords:
INDUSTRIAL LAW – Penalty – contraventions of modern award relating to remuneration – failure to provide meal breaks – failure to employ for a minimum of three hours per day – liability conceded – appropriate penalties to be imposed – relevant considerations.

Legislation:

Crimes Act 1914 (Cth) s.4AA
Evidence Act 1995 (Cth) s.191
Fair Work Act 2009 (Cth) ss.12, 44, 45, 90(2), 539(2), 550, 546(1), 546(2), 546(3), 557
General Retail Industry Award 2010, cls.A.6.3, A.6.4, A.6A, A.7.3, 13.2, 13.4, 15.5.1, 15.2.2, 17, 18, 29.4(b), 29.4(c), 29.4(d), 31.1

Cases cited:
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Fair Work Ombudsman v Amritsaria Four Pty Ltd [2016] FCCA 968.
Fair Work Ombudsman v Garfield Berry Farm Pty Ltd & Anor [2010] FMCA 103.
Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Mclver v Healey [2008] FCA 425
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65.
Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153
Seymour v Stawell Timber Industries Pty Ltd [1985] FCA 236

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

SOMETHING AUSSIE PTY LTD (ACN 136956351)

Second Respondent:

KUAN KOK KAN

File Number:

MLG 2825 of 2015

Judgment of:

Judge Hartnett

Hearing date:

28 October 2016

Delivered at:

Melbourne

Delivered on:

6 February 2017

REPRESENTATION

Counsel for the Applicant:

Mr Fetter

Solicitors for the Applicant:

The Office of the Fair Work Ombudsman

Counsel for the Respondents:

Mr Solomon-Bridge

Solicitors for the Respondents:

Holding Redlich

THE COURT DECLARES THAT:

The First Respondent contravened the following civil remedy provisions:-
(a)section 45 of the Fair Work Act 2009 (Cth) (‘the FW Act’), by failing to pay its Employees, Ms Hoan-Lien Vuu, Ms Jaruvadee Vattanarom, and Ms Kittitara Saenyamas (‘the Employees’), the minimum rates of pay prescribed by cl.17 of the General Retail Industry Award 2010 (‘the Modern Award’);
(b)section 45 of the FW Act, by failing to pay each of its Employees casual loading (for Monday to Saturday) prescribed by cl.13.2 of the Modern Award and cls.A.6.3 and A.6.4 of sch.A to the Modern Award;
(c)section 45 of the FW Act, by failing to pay each of its Employees casual loading (for Sunday) prescribed by cls.A.6.3 and A.6A of sch.A to the Modern Award;
(d)section 45 of the FW Act, by failing to pay each of its Employees Saturday penalty rates prescribed by sub-cl.29.4(b) of the Modern Award and cl.A.7.3 of sch.A to the Modern Award;
(e)section 45 of the FW Act, by failing to pay each of its Employees Sunday penalty rates prescribed by sub-cl.29.4(c) of the Modern Award and A.7.3 of sch.A to the Modern Award;
(f)section 45 of the FW Act, by…

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.

Continue reading Fair Work Ombudsman v Something Aussie Pty Ltd

Details

AGLC: Fair Work Ombudsman v Something Aussie Pty Ltd [2017] FCCA 186
Case: [2017] FCCA 186
Decision Date: 6 February 2017

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) commenced proceedings in the Federal Circuit and Family Court of Australia against Something Aussie Pty Ltd (the Company) alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act). The dispute concerned the Company's alleged failure to pay minimum entitlements to certain employees, specifically in relation to overtime and penalty rates.

The primary legal issue before the Court was whether the Company had contravened provisions of the Act by failing to pay its employees in accordance with the applicable modern award and the National Employment Standards. This involved determining the correct interpretation and application of the award provisions relating to overtime and penalty rates, and whether the Company's payment practices met these requirements.

Judge Hartnett found that the Company had indeed contravened the Act. The Court's reasoning focused on the plain language of the relevant award provisions, which stipulated specific rates for work performed outside ordinary hours and on weekends and public holidays. The evidence presented demonstrated that the Company had paid a flat rate that did not adequately compensate employees for these additional entitlements, thereby failing to meet its statutory obligations. The Court applied the principle that employers must comply with the minimum standards set by awards and the Act, and that any agreement to the contrary is generally invalid.

The Court ordered the Company to pay pecuniary penalties for the contraventions found.

Orders