FWO v Wedderburn Petroleum Pty Ltd - [2014] FCCA 2645

FEDERAL CIRCUIT COURT OF AUSTRALIA

FWO v WEDDERBURN PETROLEUM PTY LTD

[2014] FCCA 2645

Catchwords:
INDUSTRIAL LAW – Underpayment of employees – declaration of breaches – orders for payment to employees not complied with – no discount as no cooperation – no contrition – specific and general deterrence required.

Legislation:

Fair Work Act 2009, s.546

Workplace Relations Act 2006, s.719(6)

Cotis v McPherson [2007] FMCA 2060

Fair Work Ombudsman v Garfield Berry Farm Pty Ltd & Anor [2012] FMCA 103
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Re Trade Practices Commission v CSR Limited (1991) 13 ATPR 41-076
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

WEDDERBURN PETROLEUM PTY LTD

File Number:

MLG 2308 of 2013

Judgment of:

Judge F. Turner

Hearing date:

22 October 2014

Date of Last Submission:

22 October 2014

Delivered at:

Melbourne

Delivered on:

20 November 2014

REPRESENTATION

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

The Respondent did not appear

ORDERS

Pursuant to s.719(6) of the Workplace Relations Act 2006 (Cth) and s.546(1) of the Fair Work Act 2009 (Cth) (the “FW Act”), the respondent pay pecuniary penalties in the amount of $123,915.00 for the contraventions declared in Paragraph 1 of the Orders of Judge Burchardt made 23 July 2014.
Pursuant to s.546(3)(a) of the FW Act, the pecuniary penalties ordered by the Court be paid into the Consolidated Revenue Fund of the Commonwealth, within 28 days of the date of this order.
The applicant have liberty to apply on seven days’ notice in the event that either of the preceding orders are not complied with.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2308 of 2013

FAIR WORK OMBUDSMAN

Applicant

And

WEDDERBURN PETROLEUM PTY LTD

Respondent

REASONS FOR JUDGMENT

This matter involves proceedings by the Fair Work Ombudsman (the “FWO”) against Wedderburn Petroleum Pty Ltd (“Wedderburn”). The proceedings relate to the underpayment by Wedderburn of two employees (“M” and “K”), in which declarations of breaches, and the imposition of penalties for those breaches, are sought.
By orders dated 23 July 2014, Judge Burchardt made declarations of breaches by Wedderburn, and ordered:
(2)Pursuant to section 719(6) of the WR Act and section 545(2)(b) of the FW Act, the Respondent pay within 28 days of this Order:
(a)Ms Murphy the amount of $21,637.46; and
(b)Ms Kennedy the amount of $25,620.91.
(3)Pursuant to section 722(1) of the WR Act and section 547(2) of the FW Act, the Respondent pay within 28 days of this Order interest on the sums referred to in order 2 above in the following amounts:
(a)Ms Murphy the amount of $834.08; and
(b)Ms Kennedy the amount of $987.63.
Wedderburn did not appear on that day, but a copy of the orders has been served on it. The orders set the matter down on 22 October 2014 for the hearing of the application…

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 2645
Decision Date: 20 November 2014

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, per Judge F. Turner, considered a dispute between the Fair Work Ombudsman (FWO) and Wedderburn Petroleum Pty Ltd concerning alleged contraventions of the *Fair Work Act 2009* (Cth). The FWO brought proceedings alleging that Wedderburn Petroleum had failed to comply with its obligations under the *Fair Work Act* in relation to its employees.

The central legal issue before the Court was whether Wedderburn Petroleum had contravened specific provisions of the *Fair Work Act* by failing to meet its statutory obligations towards its employees. This involved determining the nature and extent of those obligations and whether the company's actions or omissions constituted a breach.

Judge Turner's reasoning focused on the interpretation and application of the relevant sections of the *Fair Work Act* to the factual matrix presented. The Court examined the evidence to ascertain whether the company had indeed failed to adhere to its legal duties as an employer. The principles applied would have centred on the statutory requirements for employers under the *Fair Work Act*, including but not limited to, provisions relating to wages, conditions of employment, and record-keeping.

The Court found that Wedderburn Petroleum Pty Ltd had contravened the *Fair Work Act* and ordered the company to pay pecuniary penalties.

Orders