Federal Circuit Court of Australia
Jess v Cooloola Milk Pty Ltd [2021] FCCA 1526
File number(s): BRG 279 of 2019 Judgment of: JUDGE VASTA Date of judgment: 7 July 2021 Catchwords: INDUSTRIAL LAW – claim for underpayment – casual v full time worker – proper award – is the applicant better off? – no records kept by respondents – effect of s 557C – adverse action – whether there was an exercise of workplace right – has respondent discharged the onus – contravention of record keeping requirements – declarations made – no pecuniary penalty ordered Legislation: Fair Work Act 2009 (Cth) ss 15A, 342(3), 345, 535, 550, 557C, 570
Fair Work Regulations 2009 (Cth) regs 3.33(2), 3.34
Road Transport (Long Distance Operations) Award 2010
Road Transport and Distribution Award 2010
Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034
Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456
Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589
Number of paragraphs: 235 Date of last submission/s: 15 June 2021 Date of hearing: 17 and 18 February 2020 and 10 and 11 May 2021 Place: Brisbane Counsel for the Applicant: Mr Latham Solicitor for the Applicant: Anderson Gray Lawyers Counsel for the Respondents: Ms Willson Solicitor for the Respondents: Employsure Law Pty Ltd ORDERS
BRG 279 of 2019 BETWEEN: GREGORY JESS
Applicant
AND: COOLOOLA MILK PTY LTD
First Respondent
RICHARD SCHRODER
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
7 July 2021
THE COURT DECLARES THAT:
1.The First and Second Respondent contravened section 535 of the Fair Work Act 2009 (Cth) (FW Act) by:
(a)failing to make employee records in relation to the casual employment of the Applicant, Gregory Jess; and
(b)failing to make a record of the number of overtime hours worked by the Applicant, Gregory Jess.
THE COURT ORDERS THAT:
2.There be no pecuniary penalty made against the First and Second Respondent.
3.Otherwise all outstanding applications be dismissed.
REASONS FOR JUDGMENT
JUDGE VASTA
Introduction
In April 2014, the First Respondent, Cooloola Milk Pty Ltd, were looking for a new truck driver because their current truck driver was about to retire. The Applicant, Gregory Jess, contacted Richard Schroder, the Second Respondent, who is the majority shareholder and managing director of the First Respondent.
The Applicant began to work for the company on 2 May 2014. His main duties were driving trucks, either on a “Brisbane run” or a “local run” but there were also other duties that he performed.
On 4 January 2019, the Applicant was told by the Second Respondent that his services were no longer needed and that he was being given two weeks’ notice. Accordingly, the Applicant finished working for the First Respondent on 18 January 2019.
The Applicant has claimed that he was chronically underpaid…
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- Case
- [2021] FCCA 1526
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the First Respondent had breached section 535 of the *Fair Work Act 2009* (Cth) by failing to keep proper records of employee entitlements. Additionally, the court had to consider whether the Second Respondent was accessorily liable for any contravention under section 550 of the Act, and whether the applicant had been subjected to adverse action due to the exercise of a workplace right. Finally, the court needed to decide whether to issue declarations and impose pecuniary penalties for any proven contraventions.
Vasta J found that the First Respondent had indeed breached section 535 of the *Fair Work Act 2009* (Cth) by failing to maintain adequate records. While acknowledging that the employer's actions were not intended to detrimentally affect the employee and that the employee had, in fact, been generously compensated, the court emphasised the importance of legislative compliance for maintaining balance in the workplace. Consequently, a declaration was made that the First Respondent had contravened the Act. The court also found the Second Respondent accessorily liable under section 550, having procured the contravention through decisions regarding payment and record-keeping. Despite the contraventions, Vasta J decided not to impose pecuniary penalties, reasoning that the record-keeping breach did not truly affect the applicant and that a declaration served as sufficient denunciation of the behaviour.
Orders
Orders of the court
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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
I find that the First Respondent has breached s 535 of the FW Act.Should there be a Declaration? A declaration that an employer has contravened the FW Act is a public denunciation of the behaviour that has led to the breach. This is because the balance sought by the legislature, through the FW Act, can only be maintained by all sides complying with the provisions of the Act. When an employer acts to the detriment of an employee, that action needs to be publicly denounced. Similarly, if an employee (or employee group) acts to the detriment of an employer, there must also be a denunciation of that behaviour. In this case, there was absolutely no intention on the part of the employer, in any way, to interfere with or diminish the rights and privileges of the employee. Whilst there may have been a disregarding of many of the facets of the Award, it was not to the detriment of the employee. As I have found, the employer was extremely generous to the employee. Nevertheless, the provisions of the FW Act have been contravened. I am of the view that declarations must be made.Is the Second Respondent accessorily liable for the contravention? The answer to this question is found by examining s 550 of the FW Act. Subsection (2) of that provision reads as follows:(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:(a) has aided, abetted, counselled or procured the contravention; or(b) has induced the contravention, whether by threats or promises or otherwise; or(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or(d) has conspired with others to effect the contravention. The Second Respondent has certainly procured the contravention. It has been his decision that the employees are paid a set amount no matter what hours they actually work. It was his decision not to record any overtime hours. Having regard to the structure that was set in place, there was no need to record hours and certainly no need to record overtime. But, as was said before, the Second Respondent had a responsibility to comply with the provisions of the Award. I find that the Second Respondent was accessorily liable for the contravention.Pecuniary Penalty Having made a declaration, I now need to consider imposing a pecuniary penalty upon the First Respondent and the Second Respondent. I note that both the Applicant and the Respondents said that they wished to make submissions on pecuniary penalties if it were that I was to make a declaration that there had been a contravention of the FW Act. Having regard to the fact that the only declaration I will be making is in regard to record keeping and that this contravention was not something that truly affected the Applicant, I have decided that I do not need the assistance of Counsel in making a decision regarding pecuniary penalties. Whilst I am appreciative of their offers of assistance, in keeping with their desires to ensure that legal costs are kept to a minimum, I have decided to simply make the decision upon the well-known principles.