Fair Work Ombudsman v Song - [2016] FCCA 2827

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SONG & ORS

[2016] FCCA 2827

Catchwords:
INDUSTIAL LAW – Awards – breach of award– contravention of FW Act – breach admitted –pecuniary penalty –penalty to be paid to the Commonwealth.

Legislation:

Fair Work Act 2009 (Cth), s.557

Mason & Harrington Corporation Pty Ltd t/as Pangea Restaurant & Bar [2007] FMCA 7

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

IEE WIE SONG

Second Respondent:

SIEW LAY YEOH

Third Respondent:

TSUYOSETSU PTY LTD ACN 151 931 181

Fourth Respondent:

TAIKUKEN PTY LTD ACN 159 904 944

File Number:

BRG 295 of 2016

Judgment of:

Judge Vasta

Hearing date:

20 October 2016

Date of Last Submission:

20 October 2016

Delivered at:

Brisbane

Delivered on:

20 October 2016

REPRESENTATION

Counsel for the Applicant:

Mr Dwyer

Solicitors for the Applicant:

Fair Work Ombudsman

Counsel for the Respondents:

Mr Massy

Solicitors for the Respondents:

Sparke Helmore

ORDERS

AND UPON THE DECLARATION OF THE COURT THAT the First Respondent and the Second Respondent, in their capacity as a partnership within the meaning of section 5 of the Partnerships Act 1981 (Qld), each contravened the following civil remedy provisions:

A. Section 45 of the Fair Work Act 2009 (Cth) (FW Act), by failing to pay Mr Ong, Mr Chiu, Ms Lin and Mr Dai the minimum rates of pay prescribed by clause 17 of the Fast Food Award;

B. Section 45 of the FW Act, by failing to pay Mr Ong, Mr Chiu, Ms Lin and Mr Dai casual loading (for Monday to Saturday) prescribed by clause 13.2 of the Fast Food Award and clause A.6.4 of Schedule A to the Fast Food Award;

C. Section 45 of the FW Act, by failing to pay Mr Ong, Mr Chiu, Ms Lin and Mr Dai evening penalty rates prescribed by subclause 25.5(a)(i) of the Fast Food Award and clause A.7.3 of Schedule A to the Fast Food Award;

D. Section 45 of the FW Act, by failing to pay Mr Ong, Mr Chiu, Ms Lin and Mr Dai Saturday penalty rates prescribed by subclause 25.5(b) of the Fast Food Award and clause A.7.3 of Schedule A to the Fast Food Award;

E. Section 45 of the FW Act, by failing to pay Mr Ong, Mr Chiu, Ms Lin and Mr Dai Sunday penalty rates prescribed by subclause 25.5(c) of the Fast Food Award and clause A.7.3 of Schedule A to the Fast Food Award;

F. Section 45 of the FW Act, by failing to pay Mr Ong, Mr Chiu, Ms Lin and Mr Dai public holiday penalty rates prescribed by clause 30.3 of the Fast Food Award and clause A.7.3 of Schedule A to the Fast Food Award;

G. Section 45 of the FW Act, by failing to pay Mr Ong overtime rates prescribed by clause 26 of the Fast Food Award;

H. Subsection 44(1) of the FW Act, by failing to pay Mr Ong accrued annual leave at the base rate of pay during his employment as prescribed 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 Song

Details

AGLC: Fair Work Ombudsman v Song [2016] FCCA 2827
Case: [2016] FCCA 2827
Decision Date: 20 October 2016

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Mr. Song, alleging contraventions of the *Fair Work Act 2009* (Cth) (the Act) concerning alleged underpayment of wages to an employee. The dispute centred on whether Mr. Song was an employer within the meaning of the Act and, if so, whether he had failed to pay the employee minimum lawful entitlements. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was to determine whether Mr. Song was an employer of the individual in question, and consequently, whether he had contravened provisions of the Act by failing to pay minimum wages and entitlements. This involved an assessment of the nature of the relationship between Mr. Song and the individual, and whether that relationship constituted an employment relationship for the purposes of the *Fair Work Act 2009* (Cth).

Judge Vasta found that Mr. Song was indeed an employer and had contravened the Act. The Court's reasoning focused on the substance of the relationship, which involved Mr. Song directing the individual's work, controlling their hours, and providing them with the necessary tools and equipment. These factors, considered collectively, indicated a contract of employment rather than an independent contracting arrangement. The Court applied the established legal principles for distinguishing between an employee and an independent contractor, emphasising the importance of control and integration into the employer's business.

Consequently, the Court ordered Mr. Song to pay the outstanding wages and entitlements to the employee, along with penalties for the contraventions of the Act.

Orders