Fair Work Ombudsman v Yenida Pty Ltd - [2017] FCCA 2299

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v YENIDA PTY LTD & ANOR

[2017] FCCA 2299

Catchwords:
INDUSTRIAL LAW – Breaches of award provisions – numerous underpayments – failure to make and keep records – failure to complete rosters – failure to provide payslips within one working day of payment – general protections – Fair Work Act 2009 (Cth) s.342 – adverse action – injury – discrimination – Fair Work Act 2009 (Cth) s.351 – whether respondents took adverse action against two employees because of their race and/or national extraction.

Legislation:

Anti-Discrimination Act 1998 (Tas)
Fair Work Act 2009 (Cth), ss.3, 14, 45, 335, 336, 342, 351, 360, 361, 535, 536, 539, 550, 701
Fair Work Regulations 2009 (Cth), reg.3.33, 3.34
Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth), item 2 of sch.16, item 5 of sch.16
Federal Circuit Court of Australia Act 1999 (Cth), s.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, 30.1, 31.4, 32.1, 33.3, A.5.2, A.6.4, A.7.3
Racial Discrimination Act 1975 (Cth)

Cases cited:

Australian Workers Union and Others v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Childs v Metropolitan Transport Trust [1981] Industrial Arbitration Service (Current Review) 946
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150
Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (services) Pty Ltd (No.3) [2012] FCA 697
Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd (2014) 232 FCR 560
General Motors Holden Proprietary Limited v Bowling (1976) 12 ALR 605
Hodkinson v Commonwealth (2011) 248 FLR 409
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202
McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No.3) (1998) 195 CLR 1
Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 263 IR 344
Sayed v Construction, Forestry, Mining and Energy Union (2015) 327 ALR 460
Shizas v Commissioner of Police [2017] FCA 61
Yorke and Lucas (1985) 158 CLR 661

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

Second Respondent:

YENIDA PTY LTD (ACN 008 351 268)

CHANG YEN CHANG

File Number:

LNG 24 of 2015

Judgment of:

Judge Baker

Hearing dates:

6-10 March 2017, 4 May 2017 and 22 August 2017

Date of Last Submission:

22 August 2017

Delivered at:

Hobart

Delivered on:

26 September 2017

REPRESENTATION

Counsel for the Applicant:

Ms Knowles

Solicitors for the Applicant:

Fair Work Ombudsman

Counsel for the Respondent:

Ms Jones

Solicitors for the Respondent:

PCC Employment Lawyers

THE COURT ORDERS BY CONSENT THAT:

The First Respondent underpaid:
(a)Mr Kien Hoong Loh: $17,327.74 (gross); and
(b)Ms Kah Yoon Low: $8,775.57 (gross)

THE COURT DECLARES BY CONSENT…

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: [2017] FCCA 2299
Decision Date: 26 September 2017

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