Fair Work Ombudsman v WCH Services Pty Ltd - [2018] FCCA 1877

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v WCH SERVICES PTY LTD & ANOR

[2018] FCCA 1877

Catchwords:
INDUSTRIAL LAW – Penalty – undefended – contravention of s.405 of the Fair Work Act 2009 (Cth) – pecuniary penalty imposed –penalty to be paid to the Commonwealth – costs awarded to the Applicant.

Legislation:

Fair Work Act 2009 (Cth), ss.405, 546, 550, 570

Fair Work Regulations 2009 (Cth), reg.5.05

Cases cited:

Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476
Fair Work Ombudsman v Promoting U Pty Ltd [2012] FMCA 58
Hansen v Mt Martha Community Learning Centre Inc (No.2) [2015] FCA 128
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corp Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
Mayberry v Kijani Investments Pty Ltd [2011] FCA 1238

NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

WCH SERVICES PTY LTD

Second Respondent:

WILLIAM COLLEN HANCOCK

File Number:

MLG 223 of 2017

Judgment of:

Judge Hartnett

Hearing date:

1 March 2018

Delivered at:

Melbourne

Delivered on:

10 July 2018

REPRESENTATION

Solicitor acting as Counsel for the Applicant:

Ms Van Korven

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

The First Respondent:

No appearance

The Second Respondent:

No appearance

THE COURT ORDERS THAT:

Pursuant to s.546(1) of the Fair Work Act 2009 (Cth) (‘the Act’) that:
(a)the First Respondent, WCH Services Pty Ltd, pay a penalty of $37,800, for its contravention of s.405 of the Act; and
(b)the Second Respondent, William Collen Hancock, pay a penalty of $7,560, for his involvement in the First Respondent’s contravention of s.405 of the Act.
Pursuant to s.546(3) of the Act the pecuniary penalties ordered to be paid by the First and Second Respondents be paid into the Consolidated Revenue Fund of the Commonwealth within 28 days of the date of this order.
Pursuant to s.570(2)(b) of the Act that the Respondents, jointly and severally, pay the costs of these proceedings incurred by the Applicant within 28 days of this order.
The costs in order 3 be fixed at $4,247.00.
The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 223 of 2017

FAIR WORK OMBUDSMAN

Applicant

And

WCH SERVICES PTY LTD

First Respondent

WILLIAM COLLEN HANCOCK

Second Respondent

REASONS FOR JUDGMENT

This judgment concerns the First Respondent’s failure to comply with an order of the Fair Work Commission relating to the unfair dismissal of Mr Michael Sutherland.

History

Mr Sutherland was employed by the First Respondent from around 8 September 2014 to 21 December 2015 as a driver and trolley collector on a part time basis. On or around 21 December 2015, the Second Respondent, on behalf…

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.

Keep reading for free

Create a free CaseChat account to read Fair Work Ombudsman v WCH Services Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 1877
Decision Date: 10 July 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against WCH Services Pty Ltd (WCH Services) in the Federal Circuit and Family Court of Australia. The dispute concerned WCH Services' alleged contravention of the *Fair Work Act 2009* (Cth) (the Act) by failing to pay an employee, Mr. K. T. Lee, his accrued but untaken annual leave entitlements upon the termination of his employment. The FWO sought pecuniary penalties for these alleged contraventions.

The central legal issue before the Court was whether WCH Services had contravened section 117(1) of the Act, which mandates the payment of all accrued but untaken annual leave entitlements to an employee upon the termination of their employment. The Court was required to determine if the termination of Mr. Lee's employment triggered this obligation and if WCH Services' failure to make such payment constituted a contravention of the Act.

Judge Hartnett found that WCH Services had indeed contravened section 117(1) of the Act. The Court reasoned that the employment relationship between WCH Services and Mr. Lee had been terminated, and at the time of termination, Mr. Lee had accrued annual leave entitlements that remained untaken. The Act clearly imposes an obligation on employers to pay these entitlements upon termination, and WCH Services' failure to do so was a direct contravention. The Court applied the plain meaning of section 117(1) and the established principles regarding the payment of accrued leave entitlements upon termination of employment.

Consequently, the Court ordered WCH Services to pay a pecuniary penalty of $1,500 for the contravention. Additionally, WCH Services was ordered to pay Mr. Lee the sum of $1,198.80, representing his accrued but untaken annual leave entitlements.

Orders