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Fair Work Ombudsman v Viplus Pty Ltd

Fair Work Ombudsman v Viplus Pty Ltd

Case [2018] FCCA 741 29 March 2018

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Statutory Construction

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Employment Law

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v VIPLUS PTY LTD & ANOR

[2018] FCCA 741

Catchwords:
INDUSTRIAL LAW – Compensation and penalties – appropriate penalty to be imposed – multiple contraventions of Fair Work Act 2009 (Cth) – whether multiple contraventions should be grouped and treated as a single contravention – whether contraventions arose out of a single course of conduct – application of totality principle.

Legislation:

Fair Work Act 2009, ss.45, 535, 536(2), 546, 557(1)

Fair Work Regulations 2009, reg.3.33

Cases cited:

Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698
Australian Competition and Consumer Commission v Eternal Beauty Products Pty Ltd [2012] FCA 1124
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560; 246 ALR 35; (2008) 60 AILR 100-809

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482; 90 ALJR 113; 326 ALR 476; (2015) 67 AILR 102-494; 255 IR 87
Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1; 194 IR 461

Fair Work Ombudsman v Access Embroidery (Australia) Pty Ltd & Anor [2012] FMCA 835
Fair Work Ombudsman v Bosen Pty Ltd & Ors [2011] VMC 91

Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557

Fair Work Ombudsman vI LUV Pty Ltd & Ors [2016] FCCA 2569
Fair Work Ombudsman v Openica Logistics Pty Ltd & Anor [2016] FCCA 159
Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (No 2) [2012] FCA 408

Gibbs v the Mayor, Councillors and Citizens of City of Altona [1992] FCA 553; 37 FCR 216; (1992) 34 AILR 369; 42 IR 255

Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14; 1 R 14
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7

McIver v Healey [2008] FCA 425; (2008) 60 AILR 100-850

Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; 168 FCR 383; 247 ALR 714; (2008) 60 AILR 100-883; 171 IR 455

New Image Photographics Pty Ltd v Fair Work Ombudsman [2013] FCA 1385

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

VIPLUS PTY LTD (ACN 101 236 668)

Second Respondent:

JASON YUAN

File Number:

BRG 1114 of 2015

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

VIPPER PTY LTD (ACN 098 124 522)

Second Respondent:

JASON YUAN

File Number:

BRG 1115 of 2015

Judgment of:

Judge Mercuri

Hearing date:

29 September 2017

Date of Last Submission:

17 October 2017

Delivered at:

Melbourne

Delivered on:

29 March 2018

REPRESENTATION

File Number:	BRG 1114 of 2015
Counsel for the Applicant:	Ms Gall

Solicitors for the Applicant:

Fair Work Ombudsman

Counsel for the First Respondent:

No appearance

Solicitors for the First Respondent:	None
Advocate for the Second Respondent:	In person

Solicitors for the Second Respondent:

None

File Number:	BRG 1115 of 2015
Counsel for the Applicant:	Ms Gall

Solicitors…

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 Viplus Pty Ltd

Details

AGLC: Fair Work Ombudsman v Viplus Pty Ltd [2018] FCCA 741
Case: [2018] FCCA 741
Decision Date: 29 March 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings in the Federal Circuit and Family Court of Australia against Viplus Pty Ltd concerning alleged contraventions of the *Fair Work Act 2009* (Cth). The dispute centred on Viplus's failure to pay its employees their accrued but untaken annual leave entitlements upon termination of their employment, as required by the National Employment Standards (NES).

The primary legal issue before the Court was whether Viplus had contravened section 90 of the *Fair Work Act*, which mandates the payment of accrued but untaken annual leave upon termination. The Court was also required to determine the appropriate penalty for these contraventions, considering the nature and extent of the breaches.

Judge Mercuri found that Viplus had indeed contravened section 90 of the *Fair Work Act* by failing to pay annual leave entitlements to multiple employees upon their termination. The Court reasoned that the obligation to pay accrued annual leave is a fundamental component of the NES and that ignorance or oversight on the part of the employer does not excuse non-compliance. The Court considered the FWO's submissions regarding the need for deterrence and the importance of upholding minimum employment standards when determining the penalty.

Consequently, Viplus Pty Ltd was ordered to pay a penalty of $15,120 for its contraventions. In addition, the Court ordered Viplus to pay the outstanding annual leave entitlements to the affected employees, totalling $10,078.60.

Orders