Lin v Max Bean Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lin v Max Bean Pty Ltd [2023] FedCFamC2G 1127

File number(s): MLG 2956 of 2021
Judgment of: JUDGE MANSINI
Date of judgment: 30 November 2023 
Catchwords: INDUSTRIAL LAW – FAIR WORK – alleged contraventions of general protections provisions, underpayments and failures to keep records – findings that the First Respondent contravened ss.44, 45, 323, 340 and 343 of the Fair Work Act 2009 (Cth) – where Second and Third Respondents were variously involved within the meaning of s.550 – declarations made – penalty and relief to be addressed separately.
Legislation:

Fair Work Act 2009 (Cth) ss.3, 12, 26, 44, 45, 90, 97, 99, 117, 125, 323, 324, 340, 341, 342, 343, 360, 361, 365, 368, 386, 535, 536, 539, 545, 546 550, 739, 793

Fair Work Regulations 2009 (Cth)

Food, Beverage and Tobacco Manufacturing Award 2020 cls.4, 10, 23, 25, 26

Wage Theft Act 2020 (Vic)
Cases cited:

Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union & Anor [2000] FCA 1793

Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72

Fair Work Ombudsman v DTF World Square Pty Lty (in liq) (No 3) [2023] FCA 201

Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627

Pau Soon Lin v Max Bean Pty Ltd [2021] FWC 6268

QantasAirways Limited v Transport Workers Union of Australia [2023] HCA 27

Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202
Division: Division 2 General Federal Law
Number of paragraphs: 170
Date of last submission/s: 27 February 2023
Date of hearing: 8 March 2023
Place: Melbourne
The Applicant: Appeared in person
The First Respondent: No appearance
The Second Respondent  Appeared in person
The Third Respondent  Appeared in person

ORDERS

MLG 2956 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MR PAU SOON LIN

Applicant
AND:

MAX BEAN PTY LTD

First Respondent

MS XIAO XIAO

Second Respondent

MS KIM WANG

Third Respondent

ORDER MADE BY:

JUDGE MANSINI

DATE OF ORDER:

30 NOVEMBER 2023

THE COURT DECLARES THAT:

1.The Third Respondent and, pursuant to s.793 of the Fair Work Act 2009 (Cth), also the First Respondent:

(a)dismissed the Applicant on 30 September 2021 for reasons that included that the Applicant proposed to exercise his workplace right to take paid personal leave on 30 September 2021, in contravention of s.340 of the Fair Work Act; and

(b)threatened to dismiss the Applicant on 30 September 2021 with the intent to coerce the Applicant not to exercise his right to take paid personal leave on 30 September 2021, in contravention of s.343 of the Fair Work Act.

2.The Second Respondent was involved, within the meaning of s.550 of the Fair Work Act, in the contraventions of ss.340 and 343 of the Fair Work Act subject of declarations 1(a) and (b).

3.The First Respondent contravened ss.45 and 323 of the Fair Work Act by not paying the Applicant the 25% casual loading on the relevant ordinary rate…

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Details
Case
[2023] FedCFamC2G 1127
Decision Date

CaseChat Overview and Summary

In the matter of Lin v Max Bean Pty Ltd, the applicant, Lin, brought an action against Max Bean Pty Ltd and two of its directors, alleging various contraventions of the Fair Work Act 2009 (Cth). The allegations included contraventions of sections 44, 45, 323, 340, and 343 of the Act, underpayments, and failures to keep records. The first respondent, Max Bean Pty Ltd, admitted to certain contraventions, while the second and third respondents, the directors, denied any involvement. The primary focus of the dispute was whether the respondents had contravened the specified provisions of the Fair Work Act and, if so, what relief should be granted.

The court was required to determine whether the respondents had indeed contravened the Fair Work Act, specifically sections 44, 45, 323, 340, and 343. The court also had to consider the involvement of the second and third respondents in any contraventions and assess the quantum of underpayments owed to the applicant. Additionally, the court needed to decide on the appropriate relief, including declaratory relief and potential penalties.

The court found that the first respondent, Max Bean Pty Ltd, had contravened sections 44, 45, 323, 340, and 343 of the Fair Work Act. The court made declarations regarding these contraventions, expressing its disapproval of the conduct. The second and third respondents were found to be variously involved within the meaning of section 550 of the Act. The court decided that further opportunity should be given to the respondents to prepare and file written evidence and submissions regarding the compensation and pecuniary penalties that should be imposed. The relief, including penalties, was to be addressed in a subsequent program.

The court ordered that declarations be made in relation to the contraventions of the Fair Work Act. The respondents were to be given further opportunity to prepare and file written evidence and submissions regarding compensation and pecuniary penalties. The court would address these matters in a subsequent program.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

By their defence (which was not amended following the amended statement of claim), contraventions of s.44, 45 and 125 (and, in part, s.536) were admitted as against the First Respondent and Second Respondent, while the Third Respondent denied any finding that she was involved in those or any of the alleged contraventions. The Respondents also disputed the quantum of the underpayment owing to the Applicant and otherwise opposed the relief sought by the Applicant. Evidence and other documents before the Court The following affidavits were filed during the course of the proceedings:(a)Affidavit of the Applicant sworn 31 August 2022 (Applicant’s First Affidavit);(b)Affidavit of the Applicant sworn 21 December 2022 (Applicant’s Second Affidavit);(c)Affidavit of Pei Shean Sim (the Applicant’s wife) sworn 30 August 2022;(d)Affidavit of the Second Respondent sworn 14 November 2022; and (e)Affidavit of the Third Respondent sworn 14 November 2022. The following documents were also filed during the course of the proceedings:(a)On 18 November 2021, the Applicant filed an originating application and a statement of claim;(b)On 8 February 2022, the Respondents filed a response and a defence;(c)On 23 February 2022, the Applicant filed a reply;(d)On 16 January 2023, the Applicant filed an outline of written submissions;(e)On 24 January 2023, the First Respondent, Second Respondent and the Third Respondent each filed an outline of written submissions;(f)On 3 February 2023, the Applicant filed an amended statement of claim accompanied by an additional document detailing the calculations related to each claim;(g)On 17 February 2023, the Applicant filed a document titled statement of agreed facts which was not received as such given the Applicant accepted it contained disputed matters (he had prepared his own account and sought the Respondents’ input, but they never replied);(h)On 20 February 2023, the Respondents filed an outline of written submissions; and(i)On 27 February 2023, the Applicant filed an outline of written submissions in reply. Procedural context Since the original application was filed on 18 November 2021, the relevant procedural context is as follows. The Applicant was initially, and until 15 August 2022, represented by a lawyer. The three Respondents were initially, jointly and until 20 October 2022, represented by a lawyer. After the withdrawal of legal representation, there was an attempt at mediation which was not successful and so the matter was set down for hearing to take place on 30 and 31 January 2023. On 27 January 2023, the hearing was adjourned to take place on 8 and 9 March 2023 and programming orders were made in the following terms:3.By no later than 4.00 pm on 3 February 2023, the First Respondent is to file any application it intends to make for permission for the First Respondent company to appear unrepresented at the hearing. Such application if made must be accompanied by affidavit evidence in support.4.By no later than 4.00 pm on 3 February 2023, the Applicant is to file and serve an amended statement of claim which sets out:(a)the precise orders that he now seeks, with reference to the statutory power pursuant to which that order may be made;(b)the total quantum of the alleged underpayment;(c)the methodology/breakdown of the underpayment figure, for each class or category of alleged underpayment; and(d)for each class or category of alleged underpayment, a reference to the evidence before the Court that supports such finding of alleged underpayment.5.By 4.00pm on 10 February 2023, the parties are to file and serve any application to bring further evidence in these proceedings including to articulate why further evidence is necessary.6.By 4.00 pm on 17 February 2023, the parties are to file and serve an agreed statement of facts which includes all facts that are agreed or admitted as between the parties (for example, it would include the agreed translation of the text messages in evidence).7.By 4.00 pm on 20 February 2023, the Respondents are to file and serve an outline of submissions in response to the amended statement of claim.8.By 4.00 pm on 27 February 2023, the Applicant is to file and serve an outline of submissions in reply.AND THE COURT NOTES THAT:A.In the event of non-compliance with the above directions, pursuant to r.13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Court may determine the application as if it were undefended.

Decision

Reasons for decision

The failure to establish distribution of the Fair Work Statement was admitted but does not amount to a contravention that attracts a civil remedy provision and therefore no declaration will be made in this respect. CONCLUSION The above reasons explain the various contraventions the Court has determined the Respondents to have variously engaged or been involved in. The Court has a broad discretion to make a declaration. I consider this an appropriate case for declaratory relief in relation to each determined contravention of a civil remedy provision, if for no other reason than to record the Court’s disapproval of the contravening conduct. I will make declarations giving effect to these reasons. The Respondents were afforded opportunity to engage in the questions of what, if any, relief ought be granted were the Applicant to succeed in establishing the alleged contravention(s) and barely addressed the relevant considerations. Having regard to the seriousness of the matter and in all of the circumstances, it is appropriate that the Respondents be afforded further opportunity (with the benefit of these reasons) to consider, prepare and file written evidence and submissions as to the questions of what, if any, compensation and pecuniary penalty(ies) ought be imposed for the contraventions. A program will be ordered so that the parties may address the Court about those matters.

Ratio Decidendi

Legal Principle Established

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