FWO v The Thirsty Farmer

[2013] FCCA 1730

FEDERAL CIRCUIT COURT OF AUSTRALIA

FWO v THE THIRSTY FARMER & ANOR [2013] FCCA 1730

Catchwords:
INDUSTRIAL LAW – Respondents in default of Court orders – orders made as sought by applicant. 

Legislation:  
Fair Work Act 2009 (Cth)

Applicant: FAIR WORK OMBUDSMAN

First Respondent: THE THIRSTY FARMER PTY LTD

Second Respondent: RENEE LEEANN BATTY

File Number: MLG 914 of 2013

Judgment of: Judge Burchardt

Hearing date: 14 October 2013

Date of Last Submission: 14 October 2013

Delivered at: Melbourne

Delivered on: 14 October 2013

REPRESENTATION

Counsel for the Applicant: Ms Nicholas

Solicitors for the Applicant: Fair Work Ombudsman

Counsel for the Respondents: No appearance

ORDERS

THE COURT ORDERS THAT:

1. Judgment be entered for the Applicant against the First and Second Respondents pursuant to Rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001.

2. Pursuant to section 545(2) and 547(2) of the Fair Work Act 2009
   (FW Act) the First Respondent pay:

   (a)Ashlee Lorenz $8,028.40, plus interest of $166.62l and

   (b)Pauline Lorenz $11,417.39, plus interest of $236.95.

3. The matter be adjourned to 28 November 2013 at 9.30am for further hearing with respect to the Applicant’s claim for penalties to be imposed on the Respondents.

4. The parties have liberty to apply.

UPON ADMISSIONS THAT ARE TAKEN TO HAVE BEEN MADE CONSEQUENT UPON DEFAULT BY THE FIRST AND SECOND RESPONDENTS PURSUANT TO RULE 13.03A(2) OF THE FEDERAL CIRCUIT COURT RULES 2001, THE COURT DECLARES THAT:

1. The First Respondent contravened:

   (a)Item 5 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) by contravening section 185(2) of the Workplace Relations Act 1996 (Cth), by failing to pay Ashlee Lorenz and Pauline Lorenz (collectively, the Employees) the casual loading in accordance with the Australian Pay and Conditions Scale derived from the Liquor and Accommodation Industry – Restaurant – Victoria Award 1998 from 27 August 2009 to 31 December 2009;

   (b)Section 45 of the Fair Work Act 2009 (Cth) by:

   i.Failing to pay a 25% casual loading to:

   1.Ashlee Lorenz from 1 to 7 January 2010 and from 4 February 2011 to 30 September 2012; and

   2.Pauline Lorenz from 1 January 2010 to 30 September 2012;

   in accordance with clause 13.1 of the Restaurant Industry Award 2010 (Modern Award);

   ii.Failing to pay the Employees the base rate of pay for their ordinary hours of work on Monday to Friday in accordance with clause A.3.6 of the Modern Award from 2 July 2010 to 30 September 2012;

   iii.Failing to pay the Employees the rate payable for Saturday and Sunday work in accordance with clause A.7.2 of the Modern Award from 1 January 2010 to 1 July 2010;

   iv.Failing to pay the Employees the penalty rate payable for Saturday work in accordance with clause A.7.3 of the Modern Award from 2 July 2010 to 12 July 2012;

   v.Failing to pay the Employees the penalty rate payable for Sunday work in accordance with clause A.7.3 of the Modern Award from 2 July 2010 to 30 September 2012; and

   vi.Failing to pay Ashlee overtime rates for work performed outside ordinary hours between 8 January 2010 and 3 February 2011 in accordance with clause 33.1 of the Modern Award.

2. The Second Respondent was involved in the First Respondent’s contraventions specified in Declaration 5 above within the meaning of section 550(1) of the FW Act and therefore contravened the provisions specified in Declaration 5 above.

THE COURT NOTES THAT:

1. The Applicant will file and serve written submissions and draft orders prior to the adjourned date.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 914 of 2013

FAIR WORK OMBUDSMAN

Applicant

And

THE THIRSTY FARMER PTY LTD

First Respondent

RENEE LEEANN BATTY

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I will indicate now that I am prepared to make the orders sought in the minutes annexed to the applicant’s written submissions on the affidavit material as filed.  The applicant has clearly made out his case.  The underpayments referred to are established by this evidence on affidavit and in these circumstances, bearing in mind that the respondent is in default as the applicant’s written submissions point out, there is copious authority referred to in those written submissions for the Court to make any orders that are justified on the pleadings. 

2. The orders sought are plainly justified on the pleadings and are, in any event, proved by the affidavit material.  Obviously, it is appropriate to make the orders sought and in the particular circumstances of this case it is also appropriate to make declarations.  The reason for that is that unfortunately both the respondents are insolvent.  In many ways it is the declarations and the measure of penalties that are ultimately imposed, which are relevant to general deterrence that will have work to do. 

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  14 October 2013