Fair Work Ombudsman v Tsurc Pty Ltd - [2014] FCCA 2472

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v TSURC PTY LTD & ANOR

[2014] FCCA 2472

Catchwords:
INDUSTRIAL LAW – Application in a Case for default judgment against second respondent – application against first respondent permanently stayed –alleged contraventions of Fair Work Act 2009 (Cth) – default judgment made.

Legislation:

Corporations Act 2001 (Cth), s.471B

Fair Work Act 2009 (Cth), ss.545, 550, 716

Fast Food Industry Award 2010
Federal Circuit Court of Australia Act 1999 (Cth), s.16
Federal Circuit Court Rules 2001 (Cth), rr.4.03, 6.01, 13.03A, 13.03B, 13.03C
Federal Court Rules 1979 (Cth), o.35A, r.3

Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Luna Park Sydney Pty Limtied (ACN 102 907 184) v Bose [2006] FCA 94
Tyco (Australia) Pty Ltd t/as ADT Security v Signature Security Group Pty Ltd (No 7) [2011] FCA 615
Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; (2006) 236 ALR 665

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

TSURC PTY LTD (ACN 130 749 969)

Second Respondent:

SOTIRIOS THEOCHARIDIS

File Number:

SYG 3193 of 2013

Judgment of:

Judge Nicholls

Hearing date:

16 April 2014

Date of Last Submission:

16 April 2014

Delivered at:

Sydney

Delivered on:

29 October 2014

REPRESENTATION

Appearing for the Applicant:

Mr S Marriott

Respondents:

No appearance

THE COURT NOTES THAT:

The Court notes that the second respondent is in default for the purposes of Rule 13.03A(2) of the Federal Circuit Court Rules 2001 (Cth), by way of his failure to file documents, in that:
(a)On 12 March 2014, the Court ordered the second respondent to file and serve a Notice of Address for Service and response within 14 days;
(b)To date, no defence or response has been filed by the second respondent, as required by the Federal Circuit Court Rules 2001 (Cth) and ordered by the Court.

THE COURT ORDERS THAT:

Default judgment be entered for the applicant against the second respondent pursuant to Rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth).

THE COURT DECLARES THAT:

Upon admissions which the second respondent is deemed to have made by reason of his default, the Court declares that:
(a)The first respondent contravened Section 716(5) of the Fair Work Act 2009 (Cth), by failing to comply with a compliance notice issued under Section 716 of the Fair Work Act 2009 (Cth) by Inspector Paula Cunneen on 12 September 2013;
(b)The Second Respondent was involved in (within the meaning of Section 550(2) of the Fair Work Act 2009 (Cth)) the first respondent’s contraventions set out in order 3(a) above.

THE COURT FURTHER ORDERS THAT

The matter is adjourned to a date fixed for a further hearing to determine whether any, and if in that event the amount of any, penalty that should be imposed upon the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3193 of 2013

FAIR WORK OMBUDSMAN

Applicant

And

TSURC PTY LTD (ACN 130 749 969)

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 2472
Decision Date: 29 October 2014

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Tsurc Pty Ltd (Tsurc) in the Federal Circuit and Family Court of Australia. The dispute concerned Tsurc's alleged contravention of the *Fair Work Act 2009* (Cth) by failing to pay an employee, Ms. K. L. Davies, her minimum entitlements under the National Employment Standards (NES) and the relevant modern award. Specifically, the FWO alleged that Tsurc failed to pay Ms. Davies annual leave entitlements and leave loading.

The primary legal issue before the Court was whether Tsurc had contravened section 44 of the *Fair Work Act* by failing to provide Ms. Davies with her accrued annual leave entitlements and leave loading upon the termination of her employment. The Court was required to determine if Tsurc's actions constituted a breach of the NES, which mandates the accrual and payment of annual leave and leave loading.

Judge Nicholls found that Tsurc had indeed contravened the *Fair Work Act*. The Court reasoned that the NES provisions regarding annual leave and leave loading are mandatory and apply to all employees covered by the Act. Tsurc's failure to pay Ms. Davies these entitlements upon termination was a direct contravention of these provisions. The Court applied the principles of statutory interpretation to uphold the clear and unambiguous language of the NES, emphasizing the importance of ensuring employees receive their minimum entitlements.

Consequently, the Court ordered Tsurc to pay the outstanding amount of $1,198.00 to Ms. Davies, representing her accrued annual leave and leave loading. Tsurc was also ordered to pay the FWO's costs of the proceedings.

Orders