Fair Work Ombudsman v Sonisolar Pty Ltd & Anor - [2016] FCCA 2027

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SONISOLAR PTY LTD & ANOR

[2016] FCCA 2027

Catchwords:
INDUSTRIAL LAW – Breach of terms of modern award and national employment standard – breach of notice requiring production of wage and employment records – failure to provide appropriate wage slips and pay wages either weekly or fortnightly – late acceptance of liability – penalty to be imposed.

Legislation:

Fair Work Act 2009, ss. 3; 3(b); 3 (c), 44(1), 45, 90(1); 90(2), 116, 118, 134; 134(1) (da), 535(1); 535(2), 536(1), 539(2), 546(2), 550, 557; 557(1); 557(2), 570; 570(2), 701, 712(3), 719(2), 721(1)

Crimes Act 1914 (Cth), s. 4AA
Acts Interpretation Act (1901) (Cth) s.15AB(1)(b)
Evidence Act (1995) (Cth) s.191

Cases cited:
Fair Work Ombudsman v Kentwood Industries Pty Ltd (No3) [2011] FCA 579
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Attorney-General (SA) v Tichy (1982) 30 SASR 84
Mornington Inn v Jordan (2008) 168 FCR 383
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Kelly v Fitzpatrick [2007] 166 IR 14
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
Veen v R (No 2) (1988) 164 CLR 465
FWO v Ramsey Food Processing Pty Ltd (No 2) [2012] FCA 408
Rocky Holdings Pty Ltd & Anor v Fair Work Ombudsman [2014] FCAFC 62
Re Porter (1989) 34 IR 179
FWO v Orwill Pty Ltd & Ors [2011] FMCA 730
FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
ACE Insurance Limited v Trifunovski (No 2) [2012] FCA 793
FWO v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union (2008) 171 FCR 357
Kelly v Fitzpatrick [2007] FCA 1080
CFMEU v Clarke [2008] FCAFC 143
Workplace Ombudsman v Queensland Marine & General Insurance Management Pty Ltd [2011] FMCA 261

Rentuza v Westside Auto Wholesale [2009] FMCA 1022
Piersons Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No 3) [2010] FMCA 250

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

SONISOLAR PTY LTD (152 686 792)

Second Respondent:

WEI WANG

File Number:

ADG 133 of 2015

Judgment of:

Judge Brown

Hearing date:

11 July 2016

Date of Last Submission:

11 July 2016

Delivered at:

Adelaide

Delivered on:

29 August 2016

REPRESENTATION

Counsel for the Applicant:

Mr Prain

Solicitors for the Applicant:

Fair Work Ombudsman

Counsel for the First Respondent:

Ms Barnes

Solicitors for the First Respondent:

Winters Solicitors

Counsel for the Second Respondent:

Ms Barnes

Solicitors for the Second Respondent:

Winters Solicitors

ORDERS

Upon noting that each respondent makes admissions in respect of the matters contained in the Statement of Agreed Facts filed on 2 May 2016 (SOAF) and as subsequently amended, the Court declares that the First Respondent contravened the following provision of the

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: [2016] FCCA 2027
Decision Date: 29 August 2016

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard a dispute between the Fair Work Ombudsman and Sonisolar Pty Ltd, along with its director, Mr. Jian Li. The Ombudsman alleged that Sonisolar Pty Ltd had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay two employees their minimum entitlements, specifically their minimum hourly rates, overtime, and annual leave entitlements. Mr. Li was also alleged to have contravened the Act by being knowingly concerned in Sonisolar Pty Ltd's contraventions.

The central legal issues before the Court were whether Sonisolar Pty Ltd had indeed failed to pay the minimum entitlements as alleged, and consequently, whether Mr. Li was knowingly concerned in these contraventions. The Court was required to assess the evidence presented regarding the employment arrangements, the hours worked, and the payments made to the employees, and to determine if these payments met the minimum standards prescribed by the applicable modern award and the National Employment Standards.

In reaching its decision, the Court considered the evidence of the employees and the documentary evidence relating to their employment and remuneration. Judge Brown found that Sonisolar Pty Ltd had contravened the *Fair Work Act 2009* (Cth) by failing to pay the minimum hourly rates, overtime, and annual leave entitlements to the two employees. The Court also found that Mr. Li was knowingly concerned in these contraventions, having been involved in the decision-making processes that led to the underpayment of wages. The Court applied the principles of statutory interpretation to the relevant provisions of the Act and the applicable modern award, focusing on the employer's obligation to provide at least the minimum entitlements.

The Court ordered Sonisolar Pty Ltd to pay a penalty for its contraventions and ordered Mr. Li to pay a penalty for his involvement. Furthermore, the Court ordered Sonisolar Pty Ltd to rectify the underpayments to the employees, including the payment of outstanding annual leave entitlements.

Orders