Jarvis v Imposete Pty Ltd (No.2) - [2008] FMCA 101

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JARVIS v IMPOSETE PTY LTD (No.2)

[2008] FMCA 101

INDUSTRIAL LAW – Contraventions of award – employee incorrectly paid reduced ‘indentured apprentice’ rates during six months ‘trial’ – nine breaches of different terms admitted – senior managers were responsible – large employer – deterrent penalties appropriate – application of totality principle – total penalties of $93,600 ordered.

Federal Magistrates Court Rules 2001 (Cth), r.26.01
Apprenticeship and Traineeship Act 2001 (NSW), ss.7, 13, 22
Crimes Act 1914 (Cth), s.4AA
Federal Magistrates Act 1999 (Cth), s.77
Federal Meat Industry (Retail and Wholesale) Award 2000 (Cth), cll.5.2, 9.2.4, 9.2.4(a), 10.1, 15, 15.1, 15.6, 20.4, 21.1.4(d), 22.4.1, 25.1, 27.12.1, 28.2, 32.3.1(c)
Uniform Civil Procedure Rules 2005 (NSW), Sch.5
Workplace Relations Act 1996 (Cth), ss.3(d), 3(f), 111(1)(e), 178(3)(b), 178(4)(a)(i), 178(4)(a)(ii), 178(4)(b), 719, 719(1), 719(2), 719(4), 719(6), 719(7), 722, 722(1), 723, 841
Workplace Relations Amendment (Codifying Contempt Offences) Act 2004 (Cth), s.2, Sch.3 items 14, 16, 25
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)

Coles v Elsen Bros Pty Ltd [2007] FMCA 1838
Cotis v Pow Juice Pty Ltd [2007] FMCA 140
Dennington v Pee Cee Pty Ltd [2008] FMCA 79
Flattery v The Italian Eatery [2007] FMCA 9
Gibbs v The Mayor, Councillors & Citizens Of The City Of Altona (1992) 37 FCR 216
Jarvis v Imposete Pty Ltd [2007] FMCA 1825
Jordan v Mornington Inn Proprietary Limited [2007] FCA 1384
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550

Applicant:

INSPECTOR ROBERT JARVIS

Respondent:

IMPOSETE PTY LTD

ACN 002 880 097

File Number:

SYG853 of 2007

Judgment of:

Smith FM

Hearing date:

30 January 2008

Delivered at:

Sydney

Delivered on:

13 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr P Newall

Solicitors for the Applicant:

Fisher Cartwright Berriman

Counsel for the First Respondent:

Mr M P Cleary

Solicitors for the Respondent:

Moray & Agnew

ORDERS

There is imposed on the respondent pursuant to s.719(1) of the Workplace Relations Act 1996 (Cth) a penalty in the amount of $10,400 for each of its admitted breaches of subclauses 10.1, 15.1, 20.4, 21.1.4(d), 22.4.1, 25.1, 27.12.1, 28.2 and 32.3.1(c) of the Federal Meat Industry (Retail and Wholesale) Award 2000 (Cth).
Pursuant to s.841, the respondent must pay the amount of $2,000, being part of the penalties, to Byron Mercer.
Pursuant to s.841, the respondent must pay the sum of $91,600, being the balance of the penalties, to the Commonwealth.
Orders (2) and (3) shall take effect on 13 April 2008.
The judgment debts arising under (2) and (3) shall carry interest from that date at the rate prescribed by the Federal Court Rules.
Liberty to the applicant to apply for further orders in relation to the payment by the respondent of arrears of superannuation contributions.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG853 of 2007

INSPECTOR ROBERT JARVIS

Applicant

And

IMPOSETE PTY LTD

ACN 002 880 097

Respondent

REASONS FOR JUDGMENT

Mr Byron Mercer was employed…

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: [2008] FMCA 101
Decision Date: 13 February 2008

CaseChat Overview and Summary

Jarvis brought proceedings against Imposete Pty Ltd in the Federal Court of Australia concerning alleged breaches of the Federal Meat Industry (Retail and Wholesale) Award 2000 (Cth). The respondent admitted to multiple breaches of the award, and the primary issue before the court was to determine the appropriate penalties for these breaches under the Workplace Relations Act 1996 (Cth). The court also had to decide on the distribution of the penalties between the Commonwealth and an individual, Byron Mercer, in accordance with the relevant statutory provisions.

The court meticulously examined the admitted breaches and their respective penalties as outlined in the award. The respondent was found liable for nine specific breaches of the award, and the court calculated the penalties for each breach. In accordance with section 719(1) of the Workplace Relations Act, the court imposed a penalty of $10,400 for each of the admitted breaches. Under section 841, the respondent was required to pay part of the penalties to Byron Mercer and the balance to the Commonwealth. The court set the date for these payments to take effect and ordered interest on the judgment debts from that date, as per the Federal Court Rules. Additionally, the court granted Jarvis the liberty to apply for further orders concerning the payment of arrears of superannuation contributions by the respondent.

In summary, the Federal Court imposed penalties on Imposete Pty Ltd for its admitted breaches of the Federal Meat Industry (Retail and Wholesale) Award 2000, distributed the penalties between Byron Mercer and the Commonwealth, and set the effective date for the payments along with the applicable interest. The court also allowed Jarvis the option to seek further orders regarding unpaid superannuation contributions.

Orders

Orders of the court

There is imposed on the respondent pursuant to s.719(1) of the Workplace Relations Act 1996 (Cth) a penalty in the amount of $10,400 for each of its admitted breaches of subclauses 10.1, 15.1, 20.4, 21.1.4(d), 22.4.1, 25.1, 27.12.1, 28.2 and 32.3.1(c) of the Federal Meat Industry (Retail and Wholesale) Award 2000 (Cth).

Pursuant to s.841, the respondent must pay the amount of $2,000, being part of the penalties, to Byron Mercer.

Pursuant to s.841, the respondent must pay the sum of $91,600, being the balance of the penalties, to the Commonwealth.

Orders (2) and (3) shall take effect on 13 April 2008.

The judgment debts arising under (2) and (3) shall carry interest from that date at the rate prescribed by the Federal Court Rules.

Liberty to the applicant to apply for further orders in relation to the payment by the respondent of arrears of superannuation contributions.

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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