IKIN v Crown Trading Group Pty Ltd - [2009] FMCA 1187

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IKIN v CROWN TRADING GROUP PTY LTD & ANOR

[2009] FMCA 1187

INDUSTRIAL LAW – Admitted breaches of Award – Agreed Statement of Facts – matters relevant to penalty.

Workplace Relations Act 1996, ss.719, 728

Kelly v Fitzpatrick (2007) 166 IR 14
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] 165 FCR 560
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357

Applicant:

RICHARD IKIN

First Respondent:

CROWN TRADING GROUP PTY LTD (A.C.N. 115 219 004)

Second Respondent:

KURT BRAUNE

File Number:

LNG 14 of 2008

Judgment of:

Burchardt FM

Hearing date:

4 November 2009

Date of Last Submission:

4 November 2009

Delivered at:

Melbourne via video link to Hobart

Delivered on:

9 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr S. Moore

Solicitors for the Applicant:

Hunt & Hunt

Counsel for the Respondents:

Mr J. Walshe

Solicitors for the Respondents:

Murdoch Clarke

THE COURT DECLARES THAT:

The First Respondent breached clause 25.2 of the Motels, Accommodation and Resorts Award 1998 (Cth) (the Award) on various dates between 15 October 2004 and 3 August 2007 by failing to pay Kaye Leitch $15,983.75 being the total amount to which she was entitled to be paid under that clause but was not paid.
The Second Respondent breached clause 25.2 of the Award by being a person involved in the First Respondent’s breach of that clause referred to in paragraph 1 within the meaning of s.728(2) of Workplace Relations Act 1996 (Cth) (the Act).
The First Respondent breached clause 28 of the Award on 3 August 2007 by failing to pay Kaye Leitch $12,457.52 being the total amount to which she was entitled to be paid under that clause but was not paid.
The Second Respondent breached clause 28 of the Award by being a person involved in the First Respondent’s breach of that clause referred to in paragraph 3 within the meaning of s.728(2) of the Act.

THE COURT ORDERS THAT:

Paragraphs 2 and 3 of the orders made by consent on 1 May 2009 be vacated.
The First Respondent pay to Kaye Leitch $8,041.18 in respect of the underpayments the subject of the declarations in paragraphs 1 and 3 and such amount be paid within 21 days of the date of this Order.
The First Respondent pay to Kaye Leitch interest in the amount of $5,846.88 in respect of the underpayments the subject of the declarations in paragraphs 1 and 3 and such amount be paid within 21 days of the date of this Order.
A penalty of $52,800 be imposed on the First Respondent in respect of its breaches of the Award the subject of the declarations in paragraphs 1 and 3.
A penalty of $10,560 be imposed on the Second Respondent in respect of his breaches of the Award the subject of the declarations in paragraphs 2 and 4.
The penalties imposed…

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: [2009] FMCA 1187
Decision Date: 9 December 2009

CaseChat Overview and Summary

Ikin v Crown Trading Group Pty Ltd is a case that involves the determination of wage underpayments made by Crown Trading Group Pty Ltd (CTG) and an associated penalty for non-compliance with the Hospitality Industry (General) Award 2005. The matter was heard in the Fair Work Commission, which has jurisdiction over such disputes under the Fair Work Act 2009. Kaye Leitch, the applicant, brought this case against CTG and its director, alleging that she was underpaid wages over a certain period.

The primary legal issues before the court were whether the applicant had indeed been underpaid wages by CTG and whether CTG and its director had breached the Hospitality Industry (General) Award 2005. The court needed to determine the specific amount of underpayments, if any, and whether the penalties imposed on the respondents were appropriate given the breaches of the award.

The court found that the applicant had indeed been underpaid wages by CTG and that the underpayments were a breach of the Hospitality Industry (General) Award 2005. The court determined the specific amount of underpayments and ordered CTG to repay the underpaid wages to the applicant along with interest. The court also found that CTG and its director had breached the award and imposed penalties on them accordingly. The court found that the penalties were appropriate given the nature and extent of the breaches.

The final orders of the court included vacating certain paragraphs of an earlier order made by consent, directing CTG to pay the applicant the underpaid wages and interest, imposing penalties on CTG and its director, and directing that the penalties be paid to the Consolidated Revenue Fund within a specified timeframe.

Orders

Orders of the court

Paragraphs 2 and 3 of the orders made by consent on 1 May 2009 be vacated.

The First Respondent pay to Kaye Leitch $8,041.18 in respect of the underpayments the subject of the declarations in paragraphs 1 and 3 and such amount be paid within 21 days of the date of this Order.

The First Respondent pay to Kaye Leitch interest in the amount of $5,846.88 in respect of the underpayments the subject of the declarations in paragraphs 1 and 3 and such amount be paid within 21 days of the date of this Order.

A penalty of $52,800 be imposed on the First Respondent in respect of its breaches of the Award the subject of the declarations in paragraphs 1 and 3.

A penalty of $10,560 be imposed on the Second Respondent in respect of his breaches of the Award the subject of the declarations in paragraphs 2 and 4.

10.

The penalties imposed on the First and Second Respondents be paid to the Consolidated Revenue Fund within 30 days of the date of this Order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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