FWO v The Thirsty Farmer Pty Ltd - [2014] FCCA 207

FEDERAL CIRCUIT COURT OF AUSTRALIA

FWO v THE THIRSTY FARMER PTY LTD & ANOR

[2014] FCCA 207

Catchwords:
INDUSTRIAL LAW – Consideration of penalties to be imposed on respondents for multiple breaches of industrial instruments – respondents now insolvent and no longer participating in proceeding – consideration, and general adoption, of applicant’s submissions.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03B(2)(c)
Bankruptcy Act 1966 (Cth)

Fair Work Act 2009 (Cth)

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Kelly v Fitzpatrick [2007] FCA 1080
Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503
Fair Work Ombudsman v Promoting U Pty Ltd [2012] FMCA 58
Jordan v Mornington Inn Pty Ltd (2007) 166 IR 33
A & L Silvestri Pty Ltd v Construction, Forestry, Mining & Energy Union [2008] FCA 466

Applicant:

FAIR WORK OMBUDSMAN

FirstRespondent:

THE THIRSTY FARMER PTY LTD

SecondRespondent:

RENEE LEEANN BATTY

File Number:

MLG 914 of 2013

Judgment of:

Judge Burchardt

Hearing date:

28 November 2013

Date of Last Submission:

28 November 2013

Delivered at:

Melbourne

Delivered on:

20 February 2014

REPRESENTATION

Counsel for the Applicant:

Ms Nicolas

Solicitors for the Applicant:

Fair Work Ombudsman

The Respondents:

No appearance

ORDERS

Pursuant to s.546(1) of the Fair Work Act 2009 (Cth) (“the FW Act”) the First Respondent pay an aggregate penalty of $40,000 in respect of the contraventions referred to in the declarations and orders made by this Court on 14 October 2013 (Default Orders).
Pursuant to s.546(1) of the FW Act the Second Respondent pay an aggregate penalty of $5,000 in respect of the contraventions referred to in the Default Orders.
Pursuant to s.546(3) of the FW Act the First Respondent pay any and all penalties ordered against it pursuant to Order 1 above to the Commonwealth.
Pursuant to s.546(3) of the FW Act the Second Respondent pay any and all penalties orders against her pursuant to Order 2 above in the following matter:
(a)41% of the total penalty ordered on the Second Respondent pursuant to Order 2 be paid to Ashlee Lorenz (to a maximum of $8,194.61, being the amount of the underpayment and interested owed to her pursuant to the Default Orders);
(b)59% of the total penalty ordered on the Second Respondent pursuant to Order 2 be paid to Pauline Lorenz (to a maximum of $11,654.34, being the amount of the underpayment and interest owed to her pursuant to the Default Orders); and
(c)If the total amount of the penalties exceeds the amounts owed to the employees as identified in Orders 4(a) and (b) above, then any additional amount is to be paid to the Commonwealth, pursuant to s.546(3)(a) of the FW Act.

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

On 14 October 2013 I made orders and declarations in this matter. I entered judgment for the Applicant against the First and Second Respondents pursuant to…

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: [2014] FCCA 207
Decision Date: 20 February 2014

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered a dispute between the Fair Work Ombudsman (FWO) and The Thirsty Farmer Pty Ltd concerning alleged contraventions of the *Fair Work Act 2009* (Cth). The FWO brought proceedings alleging that the company had failed to pay its employees their minimum lawful entitlements, including minimum wages, overtime, and leave entitlements, as prescribed by the relevant modern award and the National Employment Standards.

The central legal issues before the Court were whether The Thirsty Farmer Pty Ltd had contravened specific provisions of the *Fair Work Act 2009* by failing to pay its employees the correct minimum rates of pay and entitlements, and if so, what penalties and remedies should be imposed. The Court was required to determine the extent of the underpayments and the company's culpability in these breaches.

Judge Burchardt found that The Thirsty Farmer Pty Ltd had indeed contravened the *Fair Work Act 2009* by failing to pay its employees their minimum lawful entitlements. The Court's reasoning focused on the evidence presented, which demonstrated a pattern of underpayment across multiple employees over a significant period. The Court applied the principles of statutory interpretation to the relevant award and the National Employment Standards, concluding that the company's practices fell short of its legal obligations. The Court ordered The Thirsty Farmer Pty Ltd to pay pecuniary penalties and to rectify the underpayments to the affected employees.

Orders