FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v WI-MAN & ORS | [2011] FMCA 322 |
| INDUSTRIAL LAW – Penalty hearing – under payment of basic rate of pay and annual leave entitlements – considerations on penalty. |
| Workplace Relations Act 1996 (Cth) ss.3, 3(f), 182, 182(1), 182(3), 183(2), 232, 232(2), 235(2), 235(3), 612, 615, 719, 719(2), 728(1) |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | WI-MAN |
| Second Respondent: | MACQUARIE TECHNOLOGY GROUP INTERNATIONAL PTY LTD |
| Third Respondent: | PAUL DESMOND WALLACE |
| File Number: | BRG 1283 of 2010 |
| Judgment of: | Burnett FM |
| Hearing dates: | 4 & 12 April 2011 |
| Date of Last Submission: | 12 April 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 12 April 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Counsel for the Respondent: | Mr H. Trotter |
| Solicitors for the Respondent: | Barringer Leather Lawyers |
ORDERS
THE COURT DECLARES:
That the Second Respondent has breached:
(a)section 182(3) of the Workplace Relations Act 1996 (Cth); and
(b)section 232(2) of the Workplace Relations Act 1996 (Cth).
That the Third Respondent has, pursuant to section 728 of the Workplace Relations Act 1996 (Cth) breached:
(a)section 182(3) of the Workplace Relations Act 1996 (Cth); and
(b)section 232(2) of the Workplace Relations Act 1996 (Cth).
That the total underpayments are $5,946.37, as particularised in Schedule 1 and Schedule 2 to the Amended Statement of Claim.
THE COURT ORDERS:
That the Second Respondent pay a pecuniary penalty, pursuant to section 719(1) of the Workplace Relations Act 1996 (Cth) in respect to the contraventions at paragraph 1 above as follows:
(a)$2,640 for a breach of section 182(3) of the Workplace Relations Act 1996 (Cth); and
(b)$2,640 for a breach of section 232(2) of the Workplace Relations Act 1996 (Cth).
That the Third Respondent pay a pecuniary penalty, pursuant to section 719(1) of the Workplace Relations Act 1996 (Cth), by way of section 728 of the Workplace Relations Act 1996 (Cth) in respect to his involvement in the contraventions at paragraph 2 above as follows:
(a)$550 for a breach of section 182(3) of the Workplace Relations Act 1996 (Cth); and
(b)$550 for a breach of section 232(2) of the Workplace Relations Act 1996 (Cth).
That the Second and Third Respondents pursuant to section 841 of the Workplace Relations Act 1996 (Cth) pay the penalty in paragraphs 4 and 5 above as follows:
(a)$862.14 to Mr Malcolm Godber by 4.00 pm, 19 April 2011; and
(b)$5,517.86 to the Commonwealth Consolidated Revenue Fund by…
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- AGLC
- Fair Work Ombudsman v Wi-Man [2011] FMCA 322
- Case
- [2011] FMCA 322
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether the Second and Third Respondents had contravened sections 182(3) and 232(2) of the Act by underpaying Mr Godber and, if so, whether the Third Respondent was liable as a ‘responsible person’ under section 728 of the Act. The Court also needed to determine the amount of underpayments and the distribution of any pecuniary penalties imposed.
The Court found that both the Second and Third Respondents had indeed breached the specified sections of the Workplace Relations Act 1996 (Cth). The Second Respondent was directly liable for the underpayments, while the Third Respondent was held liable as a responsible person. The Court calculated the total underpayments to be $5,946.37. In terms of penalties, the Court imposed a penalty of $2,640 on the Second Respondent for each contravention, and a penalty of $550 on the Third Respondent for each contravention. The Court ordered that the penalties be distributed, with $862.14 going to Mr Godber and the remainder to the Commonwealth Consolidated Revenue Fund.
This decision highlights the importance of ensuring compliance with workplace laws, particularly in relation to wage payments, and the potential liability of responsible persons for breaches by others. The Court's determination of the precise amount of underpayments and the specific distribution of penalties underscores the need for accurate record-keeping and adherence to legal obligations.
Orders
Orders of the court
THE COURT DECLARES:
1.
That the Second Respondent has breached:
(a) section 182(3) of the Workplace Relations Act 1996 (Cth); and
(b) section 232(2) of the Workplace Relations Act 1996 (Cth).
2.
That the Third Respondent has, pursuant to section 728 of the Workplace Relations Act 1996 (Cth) breached:
(a) section 182(3) of the Workplace Relations Act 1996 (Cth); and
(b) section 232(2) of the Workplace Relations Act 1996 (Cth).
3.
That the total underpayments are $5,946.37, as particularised in Schedule 1 and Schedule 2 to the Amended Statement of Claim.
THE COURT ORDERS:
4.
That the Second Respondent pay a pecuniary penalty, pursuant to section 719(1) of the Workplace Relations Act 1996 (Cth) in respect to the contraventions at paragraph 1 above as follows:
(a) $2,640 for a breach of section 182(3) of the Workplace Relations Act 1996 (Cth); and
(b) $2,640 for a breach of section 232(2) of the Workplace Relations Act 1996 (Cth).
5.
That the Third Respondent pay a pecuniary penalty, pursuant to section 719(1) of the Workplace Relations Act 1996 (Cth), by way of section 728 of the Workplace Relations Act 1996 (Cth) in respect to his involvement in the contraventions at paragraph 2 above as follows:
(a) $550 for a breach of section 182(3) of the Workplace Relations Act 1996 (Cth); and
(b) $550 for a breach of section 232(2) of the Workplace Relations Act 1996 (Cth).
6.
That the Second and Third Respondents pursuant to section 841 of the Workplace Relations Act 1996 (Cth) pay the penalty in paragraphs 4 and 5 above as follows:
(a) $862.14 to Mr Malcolm Godber by 4.00 pm, 19 April 2011; and
(b) $5,517.86 to the Commonwealth Consolidated Revenue Fund by 4.00 pm, 3 June 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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