Harper v Tingmak Pty Ltd - [2020] FCCA 626

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARPER v TINGMAK PTY LTD & ORS

[2020] FCCA 626

Catchwords:
INDUSTRIAL LAW – Fair Work Proceedings – contravention of s 340 of the Fair Work Act 2009 (Cth) – where the applicant was employed as an Administrative Support Worker for the respondents – where the applicant exercised her workplace right pursuant to s 341 of the Fair Work Act 2009 (Cth) – failure to pay wages and superannuation entitlements – whether respondents breached relevant acts and Awards in regards to those underpayments – whether a penalty should be imposed for alleged contraventions – penalty payable to the applicant – application for summary judgment granted.

Legislation:

Fair Work Act 2009 (Cth), ss.45, 340, 341, 546, 547, 550, 570

Federal Circuit Court Rules 2001 (Cth), r.13.03

Cases cited:

Calderbank v Calderbank [1975] 3 All ER 333

Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown

[2017] FCA 1301

Fair Work Ombudsman v NorBrace Centre Pty Ltd (In Liq) (ACN 121 556 447)

(No 2) [2019] FCCA 2970

Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221

Ryan v Primesafe (ABN 39 877 327 401) and Others (2015) 323 ALR 107

Applicant:

LEONIE JOYCE HARPER

First Respondent:

TINGMAK PTY LTD

Second Respondent:

KATHRYN ANN TRIMING

Third Respondent:

AARON KAIN TRIMING

File Number:

SYG 868 of 2018

Judgment of:

Judge Humphreys

Hearing date:

13 March 2020

Date of Last Submission:

13 March 2020

Delivered at:

Parramatta

Delivered on:

17 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Latham

Solicitors for the Applicant:

KMC Legal

Solicitors for the Respondents:

No appearance

ORDERS

Leave is granted to discontinue proceedings against the First Respondent.
Pursuant to 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth), the Court gives summary judgment against the Second and Third Respondents as follows.
A declaration that the Second Respondent was an accessory to the contravention of s 340 of the Fair Work Act 2009 (Cth) by the First Respondent.
A declaration that the Third Respondent was an accessory to the contravention of s 340 of the Fair Work Act 2009 (Cth) by the First Respondent.
An order that the Second and Third Respondents jointly or severally pay compensation to the Applicant in the sum of $75,392.00 for economic loss that she has suffered and $10,000.00 for non-economic loss because of the contravention of s 340 of the Fair Work Act 20019 (Cth).
A declaration that the Second Respondent was an accessory to the contravention of s 45 of the Fair Work Act 2009 (Cth) by the First Respondent in never paying for a minimum of 4 hours’ work in accordance with clause 11.5 of the Airline Operations – Ground Staff Award 2010.
A declaration that the Third Respondent was an accessory to the contravention of s 45 of the Fair Work Act 2009 (Cth) by the First Respondent in never paying for a minimum of 4 hours’ work in accordance with clause 11.5 of the Airline Operations – Ground Staff Award 2010.
An…

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 626
Decision Date: 17 April 2020

CaseChat Overview and Summary

In *Harper v Tingmak Pty Ltd*, the applicant, Ms. Harper, alleged that the respondents contravened section 340 of the *Fair Work Act 2009* (Cth) by taking adverse action against her. Ms. Harper had exercised a workplace right under section 341 of the Act, specifically by seeking payment of wages and superannuation entitlements that she claimed were owed to her. The dispute before the Federal Circuit and Family Court of Australia concerned whether the respondents had breached relevant legislation and awards regarding these underpayments and whether penalties should be imposed.

The court was required to determine two primary legal issues: first, whether the respondents had contravened the *Fair Work Act 2009* (Cth) and applicable awards by failing to pay Ms. Harper her wages and superannuation entitlements; and second, whether penalties should be imposed on the respondents for these alleged contraventions, with any penalty payable to Ms. Harper.

Judge Humphreys granted the applicant's application for summary judgment. The court found that the respondents had failed to pay the wages and superannuation entitlements as required by law and the relevant awards. In reaching this decision, the court applied the principles of statutory interpretation to the *Fair Work Act 2009* (Cth) and relevant industrial instruments, concluding that the respondents' conduct constituted a contravention. The court also determined that the circumstances warranted the imposition of penalties for these contraventions.

Orders