Fair Work Ombudsman v Wongtas Pty Ltd - [2011] FCA 633

FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Wongtas Pty Ltd [2011] FCA 633

Citation: Fair Work Ombudsman v Wongtas Pty Ltd [2011] FCA 633

Parties: FAIR WORK OMBUDSMAN v WONGTAS PTY LTD, DING GUO WANG and XIAO YU ZHANG

File number: NSD 793 of 2010

Judge: COWDROY J

Date of judgment: 8 June 2011

Catchwords:
PRACTICE AND PROCEDURE – separate question of law pursuant to O 29 r 2 of the Federal Court Rules – whether paragraph of defence should be struck out – paragraph raising issue of applicant’s standing – paragraph struck out

INDUSTRIAL LAW – whether applicant is entitled to bring proceedings against respondents in connection with dismissal of an employee by the respondents without having first applied to Fair Work Australia and obtained a certificate under s 369 of the Fair Work Act 2009 (Cth) – applicant instituting proceedings as an ‘inspector’ pursuant to s 539(2) of the Fair Work Act 2009 (Cth) – Held: inspector entitled to proceed directly to Court

INDUSTRIAL LAW – whether application out of time – Held: pursuant to s 544 of Fair Work Act 2009 (Cth) application not out of time

STATUTORY INTERPRETATION – note to section 544 in the Fair Work Act 2009 (Cth) – inconsistent with other statutory provisions in such Act – effect of note – Held: unambiguous text of s 544 prevailing over note

Legislation: Acts Interpretation Act 1901 (Cth) ss 12, 13(3), 15AB(2)(e)
Fair Work Act 2009 (Cth) ss 12, 340(1)(a), 340(1)(b), 340(2), 334, 351(1), 365, 366, 369, 370(1), 371(1), 371(2), 372, 539, 545(2)(b), 546, 687, 701
Fair Work Regulations 2009 (Cth) rr 3.42(1), 4.01A(2)
Federal Court Rules O 29 r 2

Cases cited: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others (2003) 130 FCR 524
Bushell v Hammond [1904] 2 KB 563
Bushell v Hammond [1904] 73 LJ KB 1005
Chandler v Director of Public Prosecutions [1964] AC 763
Effort Shipping Co Ltd v Linden Management SA (the Giannis NK) [1998] 1 All ER 495
Evans v Minister for Immigration and Multicultural and Frauenfelder v Reid (1963) 109 CLR 42
Hoffman v Chief of Army (2004) 137 FCR 520
IMF (Australia) Ltd v Sons of Gwalia Ltd (Administrator Appointed) (2005) 143 FCR 274
Indigenous Affairs and Another (2003) 135 FCR 306
Joyce v Paton (1941) 58 WN (NSW) 88
K.& S. Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309
Mills v Meeking and Another (1990) 169 CLR 214
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd and Others (2004) 218 CLR 273
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Schildkamp [1971] AC 1
Re Baldwin (1891) 12 LR (NSW) 128
Refrigerated Express Lines (A/Asia) Pty Ltd v Australian
Meat and Live-stock Corporation and Others (No 2) (1980) 29 ALR 333
Sanderson v Fotheringham (1885) 11 VLR 190

Date of hearing: 2 May 2011

Place: Sydney

Division: FAIR WORK DIVISION

Category: Catchwords

Number…

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 Wongtas 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: [2011] FCA 633
Decision Date: 8 June 2011

CaseChat Overview and Summary

The Fair Work Ombudsman brought proceedings against Wongtas Pty Ltd concerning the dismissal of an employee. The matter was heard in the Federal Court of Australia. The key legal issues before the court included whether the Ombudsman had the standing to directly bring the proceedings without first applying to Fair Work Australia and obtaining a certificate under section 369 of the Fair Work Act 2009 (Cth), as well as whether the application was out of time and if a note in the Fair Work Act 2009 (Cth) had any effect on the statutory provisions. The court was required to determine these issues in order to decide the admissibility and timeliness of the proceedings.

The court examined the role of the Fair Work Ombudsman as an inspector under section 539(2) of the Fair Work Act 2009 (Cth) and concluded that the Ombudsman had the authority to directly bring the proceedings to the court without needing a certificate from Fair Work Australia. The court found that the application was not out of time, as the statutory provisions of section 544 of the Fair Work Act 2009 (Cth) allowed for the Ombudsman's direct action. Additionally, the court held that the note accompanying section 544 was inconsistent with other provisions in the Act and that the unambiguous text of section 544 prevailed over the note.

As a result of the court's reasoning, it was decided that paragraph 1 of the Amended Defence filed on 15 March 2011 should be struck out. The court found in favour of the Fair Work Ombudsman, allowing the proceedings to continue. This decision clarified the scope of the Ombudsman's authority and the statutory interpretation in relation to the dismissal case against Wongtas Pty Ltd.

ORDERS:
1. Paragraph 1 of the Amended Defence filed on 15 March 2011 be struck out.

Orders

Orders of the court

1. Paragraph 1 of the Amended Defence filed on 15 March 2011 be struck out.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Fair Work Ombudsman v Wongtas Pty Ltd [2011] FCA 633
Parties:		FAIR WORK OMBUDSMAN v WONGTAS PTY LTD, DING GUO WANG and XIAO YU ZHANG
File number:		NSD 793 of 2010
Judge:		COWDROY J
Date of judgment:		8 June 2011
Catchwords:		PRACTICE AND PROCEDURE – separate question of law pursuant to O 29 r 2 of the Federal Court Rules – whether paragraph of defence should be struck out – paragraph raising issue of applicant’s standing – paragraph struck out INDUSTRIAL LAW – whether applicant is entitled to bring proceedings against respondents in connection with dismissal of an employee by the respondents without having first applied to Fair Work Australia and obtained a certificate under s 369 of the Fair Work Act 2009 (Cth) – applicant instituting proceedings as an ‘inspector’ pursuant to s 539(2) of the Fair Work Act 2009 (Cth) – Held: inspector entitled to proceed directly to Court INDUSTRIAL LAW – whether application out of time – Held: pursuant to s 544 of Fair Work Act 2009 (Cth) application not out of time STATUTORY INTERPRETATION – note to section 544 in the Fair Work Act 2009 (Cth) – inconsistent with other statutory provisions in such Act – effect of note – Held: unambiguous text of s 544 prevailing over note
Legislation:		Acts Interpretation Act 1901 (Cth) ss 12, 13(3), 15AB(2)(e) Fair Work Act 2009 (Cth) ss 12, 340(1)(a), 340(1)(b), 340(2), 334, 351(1), 365, 366, 369, 370(1), 371(1), 371(2), 372, 539, 545(2)(b), 546, 687, 701 Fair Work Regulations 2009 (Cth) rr 3.42(1), 4.01A(2) Federal Court Rules O 29 r 2
Cases cited:		Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others (2003) 130 FCR 524 Bushell v Hammond [1904] 2 KB 563 Bushell v Hammond [1904] 73 LJ KB 1005 Chandler v Director of Public Prosecutions [1964] AC 763 Effort Shipping Co Ltd v Linden Management SA (the Giannis NK) [1998] 1 All ER 495 Evans v Minister for Immigration and Multicultural and Frauenfelder v Reid (1963) 109 CLR 42 Hoffman v Chief of Army (2004) 137 FCR 520 IMF (Australia) Ltd v Sons of Gwalia Ltd (Administrator Appointed) (2005) 143 FCR 274 Indigenous Affairs and Another (2003) 135 FCR 306 Joyce v Paton (1941) 58 WN (NSW) 88 K.& S. Lake City Freighters Proprietary Limited v Gordon & Gotch Limited (1985) 157 CLR 309 Mills v Meeking and Another (1990) 169 CLR 214 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd and Others (2004) 218 CLR 273 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Schildkamp [1971] AC 1 Re Baldwin (1891) 12 LR (NSW) 128 Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation and Others (No 2) (1980) 29 ALR 333 Sanderson v Fotheringham (1885) 11 VLR 190
Date of hearing:	2 May 2011
Place:	Sydney
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number…