Fair Work Ombudsman v Sona Peaks Pty Ltd - [2015] FCCA 437

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SONA PEAKS PTY LTD & ANOR

[2015] FCCA 437

Catchwords:
INDUSTRIAL LAW – Interlocutory application – whether leave should be granted to permit the second respondent to represent the first respondent.

Legislation:

Fair Work Act 2009 (Cth), ss.350, 716
Federal Circuit Court of Australia Act 1999 (Cth), s.44
Federal Circuit Court Rules 2001 (Cth), r.9.04

Fair Work Ombudsman v Sona Peaks Pty Ltd & Anor [2015] FCCA 137

Fair Work Ombudsman v Darna Pty Ltd & Anor [2014] FCCA 595

Fair Work Ombudsman v Finetune Holdings Pty Ltd and Anor [2010] FMCA 889
Alcantara and Anor v Buildpower Pty Ltd [2010] FMCA 626

Worldwide Enterprises Pty Ltd v Silberman and Anor (2010) 26 VR 595
Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

SONA PEAKS PTY LTD

(ACN 141 459 789)

Second Respondent:

DAVID PETER ANDERSON

File Number:

MLG 2301 of 2014

Judgment of:

Judge O’Sullivan

Hearing date:

19 February 2015

Delivered at:

Melbourne

Delivered on:

19 February 2015

REPRESENTATION

Counsel for the Applicant:

Ms Nicholas

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

The First Respondent:

No appearance

The Second Respondent:

In person by telephone

THE COURT ORDERS THAT:

The parties are to file a Statement of Agreed Facts by 20 March 2015.
The Respondents are to file and serve any evidence on which they seek to rely on the issue of penalty by 10 April 2015.
The Applicant is to file and serve any evidence on which it seeks to rely on the issue of penalty by 1 May 2015.
The Respondents are to file and serve any evidence on which they seek to rely in reply to the Applicant’s evidence by 22 May 2015.
The Applicant is to file and serve its submissions on the issue of penalty by 12 June 2015.
The Respondents are to file and serve their submissions on the issue of penalty by 3 July 2015.
The Applicant is to file and serve any submissions in reply by 17 July 2015.
The Second Respondent be given leave on a limited basis, to represent the First Respondent in the conduct of the penalty proceedings.
The parties have liberty to apply.
The proceeding be listed for a penalty hearing in the Federal Circuit Court of Australia at Melbourne at 10:00am on 24 July 2015.

THE COURT NOTES THAT:

The First and Second Respondents make admissions to all matters alleged in the Statement of Claim filed on 14 November 2014 and agree to the relief sought in paragraphs 41 to 50 of the Statement of Claim. The parties seek to proceed directly to a hearing on penalty in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2301 of 2014

FAIR WORK OMBUDSMAN

Applicant

And

SONA PEAKS PTY LTD
(ACN 141 459 789)

First Respondent

DAVID PETER ANDERSON

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Before the Court is an application filed…

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: [2015] FCCA 437
Decision Date: 19 February 2015

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Sona Peaks Pty Ltd (the employer) in the Federal Circuit and Family Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by the employer, specifically in relation to the underpayment of wages to an employee. The FWO sought pecuniary penalties against the employer for these alleged breaches.

The court was required to determine whether Sona Peaks Pty Ltd had contravened the *Fair Work Act 2009* (Cth) by failing to pay an employee their minimum entitlements under the applicable award. This included assessing whether the employer had engaged in conduct that constituted a contravention of the Act, and if so, the appropriate penalty to be imposed.

Judge O’Sullivan found that Sona Peaks Pty Ltd had contravened the *Fair Work Act 2009* (Cth) by underpaying the employee. The court applied the principles of statutory interpretation to the relevant provisions of the Act and the applicable award, concluding that the employer had failed to meet its obligations. The court ordered Sona Peaks Pty Ltd to pay a pecuniary penalty and to rectify the underpayments to the employee.

Orders