Fair Work Ombudsman v WCH Services Pty Ltd - [2018] FCCA 1876

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v WCH SERVICES PTY LTD & ANOR

[2018] FCCA 1876

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 2383 of 2016

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’):-
(a)the First Respondent, WCH Services Pty Ltd, pay a penalty of $43,200, for its contravention of s.405 of the Act; and
(b)the Second Respondent, William Collen Hancock, pay a penalty of $8,640, 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 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 in the sum of $4,540.00.
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 2383 of 2016

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 Kim Shortland.

History

Mr Shortland was employed by the First Respondent from 24 September 2014 to 5 December 2015 as a trolley collector supervisor. On or around 5 December 2015,…

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: [2018] FCCA 1876
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 alleged contraventions of the *Fair Work Act 2009* (Cth) by WCH Services, specifically in relation to the underpayment of wages to an employee. The FWO sought pecuniary penalties and orders for the recovery of the underpaid wages.

The primary legal issue before the Court was whether WCH Services had contravened section 45 of the *Fair Work Act 2009* (Cth) by failing to pay an employee the minimum wages and entitlements owed under the applicable modern award. The Court was also required to determine the appropriate penalty for any proven contraventions and whether orders for the repayment of underpaid wages should be made.

Judge Hartnett found that WCH Services had contravened section 45 of the *Fair Work Act 2009* (Cth) by failing to pay the employee the minimum wages and entitlements as required by the relevant modern award. The Court reasoned that the evidence established a clear shortfall in the wages paid to the employee, and that WCH Services had not demonstrated any lawful excuse for this failure. The Court applied the principles of statutory interpretation to the *Fair Work Act 2009* (Cth) and the relevant award, concluding that the employer's obligations were not met.

The Court ordered WCH Services to pay pecuniary penalties totalling $10,800 and to rectify the underpayments by paying the employee the sum of $10,000.

Orders