Fair Work Ombudsman v Trytell - [2013] FMCA 100

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v TRYTELL

[2013] FMCA 100

INDUSTRIAL LAW – Fair Work – Agreed Statement of Facts – admission of liability – accessorial liability – agreed penalty – consideration as to whether agreed penalty is within “permissible range”.

Crimes Act 1914 (Cth) 4AA(1)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 4 Pt 2, Sch 3 Pt 2 Item 2, Sch 9 Pt 3 Item 5(1), Sch 16 Pt 2(1).
Fair Work Act 2009 (Cth) s.12, 546(1)(2)(3), 550, 550(2)(c), 557(1)(2)
Workplace Relations Act 1996 (Cth) s.4(1), 17XA(2), 185(2), 232(2), 348(2), 349, 539(2), 546(2), 728(2)(c), 719(1)(2)(4), 841

Liquor and Allied Industries Catering Cafe Restaurant etc (Australian Capital Territory) Award 1998 (ACT) Cls 16.3, 16.4, 28.1, 28.2, 29.1.1, 29.1.2, 29.2.1, 37.7

ACCC v Black On White Pty Limited (2001) 110 FCR 1
Australian Ophthalmic Supplies Limited v McAlary-Smith (2008) 165 FCR 560
Finance Sector Union v Commonwealth Bank of Australia (2006) 224 ALR 467
Kelly v Fitzpatrick (2007) 166 IR 14
Markarian v the Queen (2005) 228 CLR 357
Minister for Industry Tourism and Resources v Mobil Oil Australia Pty Limited (2004) ATPR ¶41-993
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Ponzio & B & P Caelli Constructions Pty Limited (2007) 158 FCR 543
Torpia v Empire Printing (2009) 188 IR 306
Wells v Locarno Management Pty Limited (2008) FCA 1034

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

DAMIEN MICAH TRYTELL

File Number:

CAG 47 of 2012

Judgment of:

Neville FM

Hearing date:

22 November 2012

Delivered at:	Canberra
Delivered on:	8 March 2013

REPRESENTATION

Counsel for the Applicant:

Ms J Dennis

Solicitors for the Applicant:

Office of Fair Work Ombudsman

Counsel for the Respondent:

Dr C Ward & Mr J Macken

Solicitors for the Respondent:

Arnold Bloch Leibler

DECLARATIONS and ORDERS:

Manuka Food Pty Ltd (ACN 114 747 643) (Manuka) contravened the following civil penalty provisions:
(a)subsection 185(2) of the Workplace Relations Act 1996 (WR Act) and sub-item 5(1), Part 3, Schedule 9 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) by failing to pay the following eighteen (18) employees the relevant casual loading:
(i)     Peter James Adamson;
(ii)    Andrew James Fedorovitch;
(iii)   Tim Heaney;
(iv)   Cassandra Schlitz;
(v)    Kristy Greenwell;
(vi)   Rykie Hill-Wright;
(vii)    Pei Koon Lee;
(viii) Chris McClung;
(ix)   Sally Johnston;
(x)    Daniel Thomas;
(xi)   James Wilcock;
(xii)    Maximillian Gurtler;
(xiii) Amelia Schlanger;
(xiv) Rhys Spiteri;
(xv)    Sarah Jane Bryant;
(xvi) Harin Renasinghe;
(xvii)    Hayley Nichols; and
(xviii) Caroline McGrath.
(b)subsection 232(2) of the WR Act and item 2 of Part 2 of Schedule 4 of the Transitional Act by failing to accrue annual leave for the following five (5) employees:
(i)     Viewek Lai Dharme;
(ii)    Xiao Yu Zhang;
(iii)   Nazul Huda;
(iv)   Pru Fuller; and
(v)    Yuan (Silv) Liang.
(c)clauses 16.3 to 16.4 of the Liquor and Allied Industries Catering,…

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 Trytell

Details

AGLC: Fair Work Ombudsman v Trytell [2013] FMCA 100
Case: [2013] FMCA 100
Decision Date

CaseChat Overview and Summary

The case of Fair Work Ombudsman v Trytell involved the Fair Work Ombudsman taking action against Damien Micah Trytell for breaches of the Workplace Relations Act 1996 (WR Act) and the Fair Work Act 2009 (FW Act) by Manuka Food Pty Ltd, a company for which Trytell was the sole director and secretary. Manuka had underpaid wages and entitlements to 26 employees, amounting to $50,996.08. Trytell admitted liability for the breaches, and the court had to decide whether the agreed penalty was appropriate. The court considered the nature of Trytell's involvement, the size and financial circumstances of Manuka, and the need for compliance with minimum standards and deterrence. It was determined that the agreed penalty of $16,170 was within the permissible range and appropriate in the circumstances, and the court made the corresponding declarations and orders.

In summary, the Federal Magistrates Court of Australia found Trytell liable for the underpayment of wages and entitlements by Manuka Food Pty Ltd and approved the agreed penalty of $16,170. The court considered factors such as Trytell's involvement in the contraventions, the financial circumstances of Manuka, and the need for compliance with minimum standards and deterrence. The penalty was found to be within the permissible range and appropriate in the circumstances, and the court made the corresponding declarations and orders as sought and agreed.

Orders