Fair Work Ombudsman v Zurel Pty Ltd - [2020] FCCA 2884

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v ZUREL PTY LTD & ANOR

[2020] FCCA 2884

Catchwords:
INDUSTRIAL LAW – Application for civil penalty – penalty hearing – failure to satisfy Compliance Notice under Fair Work Act 2009 (Cth) – agreement on penalty and necessary declarations – appropriate penalty.

Legislation:

Fair Work Act 2009 (Cth), ss.45, 535, 536, 539, 545, 546, 550, 557, 716

General Retail Industry Award 2010

Fair Work Regulations 2009 (Cth), reg.3.46

Cases cited:

Fair Work Ombudsman v Galb Pty Ltd & Anor [2020] FCCA 2712

Construction Forestry Maritime Mining and Energy Union v Milin Builders

Pty Ltd [2019] FCA 1070

BlueScope Steel Limited v The Australian Worker’s Union [2019] FCA 182

Commonwealth of Australia v Director Fair Work Building Industry

Inspectorate (2015) 258 CLR 482

Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655

Fair Work Ombudsman v Absynthe Restaurant Pty Ltd & Anor [2015] FCCA 58

Kelly v Fitzpatrick [2007] FCA 1080

Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

ZUREL PTY LTD (ACN 159 273 677)

Second Respondent:

BAN TIEK CHEE

File Number:

MLG 339 of 2020

Judgment of:

Judge O'Sullivan

Hearing date:

On the papers

Date of Last Submission:

4 September 2020

Delivered at:

Melbourne

Delivered on:

26 October 2020

REPRESENTATION

Solicitors for the Applicant:

Fair Work Ombudsman

Solicitors for the First Respondent:

Contact Lawyers Pty Ltd

Solicitors for the Second Respondent:

Contact Lawyers Pty Ltd

ORDERS

THE COURT DECLARES THAT:

The first respondent contravened:
(a)section 716(5) of the Fair Work Act 2009 (Cth) (“the FW Act”) by failing to comply with the Compliance Notice;
(b)section 535(1) of the FW Act by failing to make and keep employee records prescribed by regulation 3.32 and regulation 3.33(1) of the Fair Work Regulations 2009 (“FW Regulations”); and
(c)section 536(1) of the FW Act by failing to give pay slips within one working day of payment.
The second respondent was involved, within the meaning of section 550 of the FW Act, in the each of the contraventions by the first respondent of sections 716(5), 535(1) and 536(1) of the FW Act referred to in paragraph 1 above.

THE COURT ORDERS BY CONSENT THAT:

Pursuant to section 545(1) of the FW Act, the first respondent take the steps that were required by the Compliance Notice within 28 days of this order, by:
(a)calculating the outstanding entitlements that it was required to pay the Employee including superannuation;
(b)paying the outstanding entitlements it was required to pay the Employee referred to in paragraph 3(a) above, to the Fair Work Ombudsman (“FWO”) (on behalf of the Employee);
(c)paying the additional superannuation contributions it was required to pay on the outstanding entitlements referred to in paragraph 3(a) above as required by clause 22.2 of the General Retail Industry Award 2010; and
(d)preparing and producing to the FWO, a schedule outlining its calculation of the outstanding entitlements it was required to pay the Employee…

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: [2020] FCCA 2884
Decision Date: 26 October 2020

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings against Zurel Pty Ltd in the Federal Court of Australia concerning a failure to comply with a Compliance Notice issued under the *Fair Work Act 2009* (Cth). The proceedings were at the penalty hearing stage, with the parties having reached an agreement on the appropriate penalty and necessary declarations.

The central legal issue before the Court was to determine the appropriate civil penalty to be imposed on Zurel Pty Ltd for its contravention of the *Fair Work Act 2009* (Cth) by failing to satisfy the requirements of the Compliance Notice.

O'Sullivan J considered the agreed penalty and declarations, applying principles relevant to the imposition of civil penalties under the *Fair Work Act 2009* (Cth). The Court's reasoning would have involved assessing the seriousness of the contravention, the need for deterrence, and the objective of ensuring compliance with workplace laws. The Court ultimately made declarations and ordered Zurel Pty Ltd to pay a penalty.

Orders