Le v Ital One Holdings Pty Ltd - [2018] FCCA 3590

FEDERAL CIRCUIT COURT OF AUSTRALIA

LE & ORS v ITAL ONE HOLDINGS PTY LTD

[2018] FCCA 3590

Catchwords:

INDUSTRIAL LAW – Allegations of underpayment of wages and breaches of the Restaurant Industry Award 2010 – five different small claims proceedings against the same respondent – consolidated and transferred to the Fair Work Division – whether the Fair Work Ombudsman can be joined to the proceedings.

Legislation:

Fair Work Act 2009 (Cth), ss.548, 682

Restaurant Industry Award 2010

Federal Circuit Court Rules 2001 (Cth), rr.11.01, 11.03

Cases cited:

Godwin & Godwin [2018] FCCA 385
Lukies v S2K Consulting Pty Ltd [2018] FCCA 143
Fair Work Ombudsman v Priority Matters Pty Ltd [2017] FCA 833
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134

First Applicant:

KHOA DUY ANH LE

Second Applicant

SHU LING TEH

Third Applicant

PABLO ANDRES GONZALES JARAMILLO

Fourth Applicant

FABIOLA SAIU

Fifth Applicant

MARY SEEWALD

Respondent:

ITAL ONE HOLDINGS PTY LTD

File Number:

MLG 2294 of 2017

Judgment of:

Judge O'Sullivan

Hearing date:

16 November 2018

Date of Last Submission:

16 November 2018

Delivered at:

Melbourne

Delivered on:

6 December 2018

REPRESENTATION

Counsel for the Applicants:

Ms Foong (pro-bono)

Solicitors for the Applicants:

Unrepresented

Counsel for the Respondent:

Self-Represented

Solicitors for the Respondent:

Self-Represented

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2294 of 2017

KHOA DUY ANH LE & ORS

Applicant

And

ITAL ONE HOLDINGS PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons concern whether, in the context of complaints, made by five former employees of the respondent of underpayment of wages, the Court can make an order joining the Fair Work Ombudsman (“FWO”) as a party to the proceedings given her role under the Fair Work Act 2009 (Cth) (“the FW Act”).

Background

There are five applicants in the substantive proceedings, all of whom filed a small claims application under s.548 of the FW Act in late 2017 and are seeking orders against Ital One Holdings Proprietary Limited trading as Café Baci (the respondent).
All the applicants were employed as casuals between 2011 and 2013 by the respondent and their employment was governed by the Restaurant Industry Award 2010. At the time of their employment, the five employees were on temporary working visas and they have all since left Australia.
The first applicant, Mr Le is 27 years of age and was employed with the respondent between 2011 and 2014. He alleges that he is owed $20,000.00 in wages and other entitlements.[1] The second applicant, Ms Teh was employed by the respondent between September 2012 and February 2013 and alleges that she is owed $9,906.51.[2] Mr Gonzales-Jaramillo, the third applicant, was employed by the respondent between February 2011 and April 2013 and alleges he is owed $20,000.00.[3] The fourth applicant, Ms Seewald was employed by the respondent from September 2012 to February 2013 and is claiming she is owed $5,858.00.[4] Ms Saiu, the fifth applicant, was…

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: [2018] FCCA 3590
Decision Date: 6 December 2018

CaseChat Overview and Summary

The proceedings involved allegations of underpayment of wages and breaches of the *Restaurant Industry Award 2010* brought by five separate claimants against Ital One Holdings Pty Ltd. These five small claims proceedings were consolidated and transferred to the Fair Work Division of the Supreme Court of South Australia. The central question before the Court was whether the Fair Work Ombudsman could be joined as a party to these consolidated proceedings.

The primary legal issue before the Court was the extent of the Fair Work Ombudsman's statutory powers and obligations, specifically concerning its ability to be joined as a party to proceedings where it had not initiated the action or sought to enforce a penalty. The Court had to consider the relevant provisions of the *Fair Work Act 2009* (Cth) to determine if the Ombudsman's role extended to participating in private litigation between employees and employers in this manner.

O'Sullivan J reasoned that the *Fair Work Act 2009* (Cth) outlines specific circumstances under which the Fair Work Ombudsman may commence or be involved in proceedings, primarily for the enforcement of the Act and Awards. His Honour concluded that the Act did not grant the Ombudsman a general power to be joined as a party to private claims for recovery of wages, particularly when the Ombudsman had not itself initiated the proceedings or sought to enforce penalties. The Court found that the Ombudsman's statutory mandate did not extend to becoming a party to such private disputes, and therefore, the application to join the Ombudsman was dismissed.

Orders