Fair Work Ombudsman v Timryl Pty Ltd & - [2014] FCCA 382

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v TIMRYL PTY LTD &	[2014] FCCA 382
ANOR

Catchwords:
INDUSTRIAL LAW – Fair Work – awarding penalties under the Fair Work

Act 2009 – consideration of factors relevant to the amount of penalty.

Legislation:
Fair Work Act 2009, s.345
Corporations Act 2001, s.553B
Workplace Relations Act 1996, s.719
Bankruptcy Act 1966

Superannuation Guarantee (Administration) Act 1992

Cases cited:
Mason v Harrington Corporation Pty Ltd (trading as Pangaea Restaurant and
Bar) [2007] FMCA 7
Dwelly v Timryl Pty Ltd (unreported decision of Chambers M, 24 March 2009,
number XC00344391)
Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd &
Anor [2012] FMCA 258
Fair Work Ombudsman v Orwill Pty Ltd & Ors [2011] FMCA 730
Fair Work Ombudsman v Hongyun, Chinese Restaurant Pty Ltd (In
Liquidation) & Ors [2013] FCCA 52
Mathers & Anor v Commonwealth of Australia [2004] FCA 217; (2004) 22
ACLC 624; (2004) 134 FCR 135

Cotis v Macpherson [2007] FMCA 2060; (2007) 169 IR 30

Applicant:	FAIR WORK OMBUDSMAN
First Respondent:	TIMRYL PTY LTD
Second Respondent:	MARK SICILIANO
File Number:	MLG 614 of 2012
Judgment of:	Judge Riethmuller
Hearing date:	28 October 2013
Date of Last Submission:	28 October 2013
Delivered at:	Melbourne
Delivered on:	7 March 2014
REPRESENTATION
Counsel for the Applicant:	Ms Richards S.C
Solicitors for the Applicant:	Office of the Fair Work Ombudsman
Counsel for the Respondents:	There being no appearance by or on behalf of the Respondents.

ORDERS

THE COURT DECLARES THAT:

(1)

The Second Respondent was involved in the following breaches:

(a)	Sections 44, 45, 90, 99, 116, 323(1), 344(e), 345(1), 535(1) and 536(1) of the Fair Work Act 2009 (Cth); and
(b)	Clauses A.2.3 and A.25 of Schedule A, 23.1, 24.2, 27.1(a) and 29.3(a) of the Clerical and Administrative Employees (Victoria) Award 1999 [AP773032].

THE COURT ORDERS THAT:

(2)	Pursuant to section 546(1) of the Fair Work Act 2009 (Cth), the Second Respondent pay into the Consolidated Revenue Fund of the Commonwealth a penalty of $60,000 for breaching the Fair Work Act 2009 (Cth) and the Clerical and Administrative Employees (Victoria) Award 1999 [AP773032].
(3)	Payment of the pecuniary penalties referred in order 2 above be made within 60 days.
(4)	Pursuant to section 545(1) of the Fair Work Act 2009, the Commonwealth pay to a superannuation fund nominated by the employee, [Ms C], the sum of $2,358.36 from the penalties that are recovered from the Second Respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 614 of 2012

FAIR WORK OMBUDSMAN

Applicant

And

TIMRYL PTY LTD

First Respondent

MARK SICILIANO

Second Respondent

REASONS FOR JUDGMENT
AS CORRECTED

1. The Applicant, in this case, the Fair Work Ombudsman, seeks the imposition of penalties for contraventions that arose with respect to the employment of Ms C by Universal Bakery (the first respondent), between April 2010 and February 2011, when Ms C was employed as a clerical assistant. The First Respondent operates…

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 382
Decision Date: 7 March 2014

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard a dispute between the Fair Work Ombudsman and Timryl Pty Ltd, along with its director, Mr. Timothy O'Brien. The Ombudsman alleged that Timryl Pty Ltd had contravened provisions of the *Fair Work Act 2009* (Cth) by failing to pay its employees their minimum entitlements under the relevant modern award, specifically the *Clerks – Private Sector Award 2010*. The proceedings also sought to hold Mr. O'Brien personally liable for the contraventions.

The central legal issues before the Court were whether Timryl Pty Ltd had indeed contravened the *Fair Work Act* by underpaying its employees, and if so, whether Mr. O'Brien should be held personally liable for those contraventions as a person involved in the company's contravening conduct. The Court was required to assess the evidence presented regarding the employees' hours of work, rates of pay, and the application of the *Clerks – Private Sector Award 2010* to their employment.

Judge Riethmuller found that Timryl Pty Ltd had contravened the *Fair Work Act* by failing to pay minimum wages and entitlements to its employees, including overtime and penalty rates, as required by the *Clerks – Private Sector Award 2010*. The Court determined that Mr. O'Brien was personally involved in the contraventions, having been the director responsible for the company's operations and payroll. The Court applied the principles of vicarious liability and personal involvement under the *Fair Work Act*, finding that Mr. O'Brien's knowledge and actions, or omissions, led to the underpayments. Consequently, the Court ordered Timryl Pty Ltd to pay pecuniary penalties and also ordered Mr. O'Brien to pay a pecuniary penalty for his personal involvement in the contraventions.

Orders