Lang v Xidis Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANG v XIDIS PTY LTD & ANOR [2008] FMCA 1009

INDUSTRIAL LAW – Determination of penalty for admitted multiple contraventions of Workplace Relations Act New South Wales Award – application s.719 – totality principle

Workplace Relations Act 1996, ss.253(2), 719(2)

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Kelly v Fitzpatrick [2007] FCA 1080

Applicant: INSPECTOR DARREN JOHN LANG

First Respondent: XIDIS PTY LTD TRADING AS EFFECTIVE SUPERMARKET SERVICES ACN 097 227 659

Second Respondent: NICK IKSIDIS

File number: SYG 2960 of 2007

Judgment of: Burchardt FM

Hearing date: 17 June 2008

Date of last submission: 17 June 2008

Delivered at: Melbourne

Delivered on: 31 July 2008

REPRESENTATION

Counsel for the Applicant: Mr M.J. Follett

Solicitor for the Applicant: Corrs Chambers Westgarth

Counsel for the Respondents: Mr J.L. Snaden

Solicitor for the Respondents: Tisher Liner & Co

ORDERS

1. The First Respondent shall pay a penalty of $120,000.00 payable to the Consolidated Revenue Fund.

2. The said $120,000.00 be paid as follows:

   (a)First payment of $10,000.00 on or before 30 September 2008.

   (b)Thereafter $10,000.00 per month paid on or before the 30th day of each succeeding month for 11 months.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYG 2960 of 2007

INSPECTOR DARREN JOHN LANG

Applicant

And

XIDIS PTY LTD TRADING AS EFFECTIVE SUPERMARKET SERVICES ACN 097 227 659

First Respondent

NICK IKSIDIS

Second Respondent

REASONS FOR JUDGMENT

1. The issue before the Court is the level of penalty that should be imposed upon the First Respondent for 12 admitted contraventions of the Workplace Relations Act 1996 (“the Act”).  

2. On 4 March 2008 by consent I made orders that set out the 12 contraventions.  The parties have filed copious materials, but more importantly have filed an agreed statement of facts on 11 April 2008.  From the agreed statement of facts it is apparent that there is no issue as to the appointment of the Applicant, Inspector Lang, or his capacity to bring the proceedings. 

3. Xidis Pty Ltd is a company limited by shares.  The Second Respondent, Nick Iksidis, is the sole director, company director and sole shareholder of the First Respondent.  Xidis Pty Ltd trades as Effective Supermarket Services and provides trolley collection services to supermarkets in Victoria and New South Wales. 

4. The Second Respondent has at all times had complete control over the affairs of the First Respondent.  No penalty is sought against the Second Respondent in this proceeding because he has undertaken to pay any penalty imposed upon the First Respondent personally. 

5. At all times up until May 2007, the First Respondent employed about 80 to 100 people.  In the period leading up to 29 May 2007, the First Respondent outsourced its trolley collection services at three sites in the Albury region to another company, and thereafter has employed about 85 people. 

6. The First Respondent employed over 40 employees who were simply not paid entitlements to which they were entitled by the Shop…