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Fair Work Ombudsman v Viper Industries Pty Ltd

Fair Work Ombudsman v Viper Industries Pty Ltd

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Case Copied 4 March 2015 41 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v VIPER INDUSTRIES PTY LTD & ANOR

[2015] FCCA 492

Catchwords:
INDUSTRIAL LAW – Failure by the first respondent to comply with a compliance notice sent in accordance with s.716 of the Fair Work Act 2009 (Cth) – contraventions of the Fair Work Act 2009 (Cth) – second respondent’s involvement in the first respondent’s contravention of the Fair Work Act 2009 (Cth) pursuant to s.550 of the Fair Work Act 2009 (Cth) – appropriate civil penalty to be paid by the respondents.

PRACTICE & PROCEDURE – Application for default judgment.

Legislation:
Fair Work Act 2009 (Cth), ss.546, 716

Cases Cited:
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72
Australian Competition and Consumer Commission v EnergyAustralia Pty Ltd [2014] FCA 336
Australian Competition and Consumer Commission v Mandurvit Pty Ltd [2014] FCA 464

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

VIPER INDUSTRIES PTY LTD
(ACN 157 689 248)

Second Respondent:

JACK YOUNES

File Number:

SYG 1772 of 2014

Judgment of:

Judge Emmett

Date of Last Submission:

28 January 2015

Delivered at:

Sydney

Delivered on:

4 March 2015

REPRESENTATION

Solicitors for the Applicant:

(Fair Work Ombudsman)

No appearance by or on behalf of the respondent

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1772 of 2014

FAIR WORK OMBUDSMAN

Applicant

And

VIPER INDUSTRIES LTD (ACN 157 689 248)

First Respondent

JACK YOUNES

Second Respondent

REASONS FOR JUDGMENT

On 27 June 2014, the applicant commenced proceedings against the respondents by way of Statement of Claim alleging the failure by the first respondent to comply with a compliance notice, issued by the applicant on 17 April 2014 in respect of underpayments by the first respondent to an employee in the amount of $6,741.92 (“the Compliance Notice”). The Statement of Claim also pleaded accessorial liability of the second respondent in relation to his knowing involvement in the first respondent’s failure to comply with the compliances notice, as required under s.716 of the Fair Work Act 2009 (Cth) (“the Act”). By Amended Statement of Claim, filed on 30 July 2014, the amount of the underpayment was amended to $6,471.92.
Various orders were made by the Court since the commencement of the proceeding for the respondents to file and serve any Defence. Pursuant to orders made by me on 25 November 2014, and in light of the failure of the respondents to comply with orders of the Court in filing any Defence, the applicant was given leave to file and serve an Application in a Case seeking default judgment, together with evidence by way of affidavit and submissions in support, by 16 January 2015.
On 16 January 2015, the applicant filed an Application in a Case seeking default judgment in respect of the failure of the first respondent to comply with the Compliance Notice and the knowing involvement of the second respondent in…

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: [2015] FCCA 492
Decision Date: 4 March 2015

CaseChat Overview and Summary

The Fair Work Ombudsman commenced proceedings against Viper Industries Pty Ltd and Mr. Anthony John Smith, alleging that Viper Industries failed to comply with a notice issued under section 716 of the *Fair Work Act 2009* (Cth). The Ombudsman also alleged that Mr. Smith was knowingly concerned in Viper Industries' contravention of the Act, pursuant to section 550 of the Act. The proceedings sought declarations of contravention and the imposition of civil penalties.

The primary legal issues before the Court were whether Viper Industries had contravened section 716 of the Act by failing to comply with the compliance notice, and whether Mr. Smith had contravened section 550 of the Act by being knowingly concerned in Viper Industries' contravention. The Court was also required to determine the appropriate civil penalty to be imposed on each respondent for their respective contraventions.

Emmett J found that Viper Industries had failed to comply with the compliance notice issued by the Fair Work Ombudsman, thereby contravening section 716 of the Act. His Honour also found that Mr. Smith was knowingly concerned in Viper Industries' contravention, and therefore contravened section 550 of the Act. In determining the appropriate civil penalties, the Court considered the nature and circumstances of the contraventions, the size of the employer, and the need for deterrence. The Court ordered Viper Industries to pay a penalty of $10,200 and Mr. Smith to pay a penalty of $2,040.

Orders