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Fair Work Ombudsman v Yenida Pty Ltd

Fair Work Ombudsman v Yenida Pty Ltd

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Case Copied 24 May 2018 78 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v YENIDA PTY LTD & ANOR

[2018] FCCA 1342

Catchwords:
INDUSTRIAL LAW – Contraventions of the Fair Work Act 2009 (Cth) – contraventions of the Fair Work (Transitional Provision and Consequential Amendments) Act 2009 – underpayment of entitlements – adverse action –injury – discrimination – because of race – because of national extraction –considerations of matters relevant to penalty.

Legislation:

Crimes Act 1914 (Cth), s.4AA
Fair Work Act 2009 (Cth), ss.3, 45, 351, 535, 536, 539, 546, 550, 557
Fair Work Regulations 2009 (Cth), regs.3.33, 3.34
Fair Work (Transitional Provision and Consequential Amendments) Act 2009 (Cth), items 2 and 5 of sch.16
Hospitality Industry-Accommodation, Hotels, Resorts and Gaming Award 1998, cl.15.2.2
Hospitality Industry (General) Award 2010, cls.13.1, 13.2, 20, 21.3, 25.1, 30.1, 31.4, 32.1, 33.3, A.5.2, A.6.4, A.7.3

Cases cited:

Jordan v Mornington Inn Pty Ltd [2007] FCA 1384

Kelly and Fitzpatrick [2007] FCA 1080

Mason v Harrington Corporation Pty Limited [2007] FMCA 7

Mornington Inn Pty Ltdv Jordan (2008) 168 FCR 383

Murrihy v Betezy.com.au Pty Ltd and Another (No 2) [2013] FCA 1146

Pearce v The Queen (1998) 194 CLR 610
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170
Ponzio v B & P Caelli Constructions (2007) 158 FCR 543
Royer v Western Australia [2009] WASCA 139
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338
Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

YENIDA PTY LTD (ACN 008 351 268)

Second Respondent:

CHANG YEN CHANG

File Number:

LNG 24 of 2015

Judgment of:

Judge Baker

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 1342
Decision Date: 24 May 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Yenida Pty Ltd (the employer) in the Federal Circuit Court of Australia. The dispute concerned alleged contraventions of the *Fair Work Act 2009* (Cth) (the Act) by the employer, 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 the employer had contravened section 45 of the Act by failing to pay an employee the minimum wage rates and entitlements prescribed by the relevant modern award, the *Fast Food, Restaurant and Catering Operations Award 2010*. This involved determining the correct classification of the employee under the award and the corresponding minimum wage and overtime entitlements.

Judge Baker found that Yenida Pty Ltd had contravened section 45 of the Act by failing to pay the employee the minimum wage and overtime entitlements as required by the *Fast Food, Restaurant and Catering Operations Award 2010*. The Court reasoned that the employee's duties and responsibilities clearly placed them within a higher classification under the award than that for which they were paid. Consequently, the employer was ordered to pay the outstanding wages and was also penalised for the contraventions.

Orders