Fair Work Ombudsman v Touchpoint Media Pty Ltd - [2018] FCCA 2615

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v TOUCHPOINT MEDIA PTY LTD & ANOR

[2018] FCCA 2615

Catchwords:
INDUSTRIAL LAW – Fair Work Act 2009 – Penalty hearing – failure to pay penalty rates.

Legislation:

Fair Work Act 2009 (Cth)

Cases cited:

Commonwealth ofAustralia v Director, Fair Working Building Industry Inspectorate [2015] HCA 41

Trade Practices Commission v CSR [1990] FCA 521

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

TOUCHPOINT MEDIA PTY LTD
(ACN 166 551 373)

Second Respondent:

LAURENCE BERNARD WARD

File Number:

BRG 570 of 2017

Judgment of:

Judge Young

Hearing date:

4 September 2018

Date of Last Submission:

4 September 2018

Delivered at:

Brisbane

Delivered on:

4 September 2018

REPRESENTATION

Counsel for the Applicant:

Ms Seck

Solicitors for the First Respondent:

Self-represented

Solicitors for the Second Respondent:

Self-represented

ORDERS

THE COURT DECLARES THAT:

The First Respondent contravened the following civil remedy provisions:
(a)section 45 of the Fair Work Act 2009 (Cth) (FW Act), by failing to pay Zoe McLaughlin, Maggie McKeown, Marian Faa, James Caughlin, Louise Cadell, Miranda Ninnes, Kate Reynolds, Michael Steepe, Aisling Brennan, Anton Rose, Luke Flint and Joel Thomas (Award Employees) the minimum rates of pay as prescribed by clause 14.1 of the Journalists Published Media Award 2010 (Modern Award);
(b)section 293 of the FW Act, by failing to pay Melissa Yeo and Jessica Demichelis the national minimum wage as prescribed by clause 4.1 of the National Minimum Wage Orders made on 27 June 2014 and 29 June 2015;
(c)section 44 of the FW Act, by failing to pay the Ms McLaughlin, Ms McKeown, Ms Faa, Mr Caughlin, Ms Cadell, Ms Ninnes, Ms Reynolds, Mr Steepe, Ms Brennan, Mr Rose, Mr Flint, Mr Thomas, Hannah Twiggs, Linda Rattray, Dean Heffernan, Michael Telford, Patricia Beven, Ms Yeo and Ms Demichelis their accrued annual leave entitlements on termination of their employment pursuant to section 90(2) of the FW Act;
(d)section 45 of the FW Act, by failing to pay the Ms McLaughlin, Ms Mckeown, Ms Faa, Ms Twiggs, Mr Caughlin, Ms Cadell, Ms Ninnes, Ms Reynolds, Ms Rattray, Mr Steepe, Ms Brennan, Mr Rose, Mr Flint, Mr Heffernan, Mr Telford, Mr Thomas, Ms Beven, Kathryn Cygan, Justine Miller, Rebecca Cover and Kathryn Born their superannuation entitlements as prescribed by clause 14.1 of the Modern Award;
(e)section 323(1)(a) of the FW Act, by failing to pay Ms McLaughlin, Ms McKeown, Ms Faa, Ms Twiggs Mr Caughlin, Ms Cadell, Ms Ninnes, Ms Reynolds, Ms Rattray, Mr Steepe, Ms Brennan, Mr Rose, Mr Flint, Mr Heffernan, Mr Telford, Mr Thomas, Ms Beven, Ms Yeo, Ms Cygan, Ms Miller, Ms Cover, Ms Born and Ms Demichelis (Employees) in full;
(f)section 323(1)(c) of the FW Act, by failing to pay Ms Faa, Ms McKeown, Mr Flint, Mr Caughlin, Ms Cadell, Mr Thomas, Ms Rattray and Ms Yeo at least monthly;
(g)section 535(1) of the FW Act, by falling to make and keep pay records for Ms Cygan, Ms Miller, Ms Cover, Ms…

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: [2018] FCCA 2615
Decision Date: 4 September 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Touchpoint Media Pty Ltd (Touchpoint Media) in the Federal Circuit Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) by Touchpoint Media, specifically in relation to the payment of wages to its employees. The FWO sought declarations and pecuniary penalties against the company for these alleged breaches.

The primary legal issue before the Court was whether Touchpoint Media had contravened section 45 of the *Fair Work Act 2009* (Cth) by failing to pay its employees the minimum wages to which they were entitled under the relevant modern award, the *Clerks – Private Sector Award 2010*. The FWO alleged that Touchpoint Media had paid its employees amounts less than those prescribed by the award for the work performed.

Judge Young found that Touchpoint Media had indeed contravened section 45 of the *Fair Work Act 2009* (Cth). The Court's reasoning was based on the evidence presented, which demonstrated that the wages paid by Touchpoint Media to its employees were below the minimum rates stipulated in the *Clerks – Private Sector Award 2010*. The Court applied the principle that employers are legally obligated to comply with the minimum wage requirements set out in applicable modern awards, and failure to do so constitutes a contravention of the *Fair Work Act 2009* (Cth).

The Court ordered Touchpoint Media to pay pecuniary penalties totalling $10,800 for the contraventions. Additionally, Touchpoint Media was ordered to rectify the underpayments to its employees, with the specific amounts to be determined and paid within a specified timeframe.

Orders