FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lin v Max Bean Pty Ltd (No 2) [2024] FedCFamC2G 431
File number(s): MLG 2956 of 2021 Judgment of: JUDGE MANSINI Date of judgment: 13 May 2024 Catchwords: INDUSTRIAL LAW – FAIR WORK – application for relief – where respondents respectively declared to have contravened a series of provisions of the Fair Work Act 2009 (Cth) – assessment of relevant considerations – pecuniary penalties and compensation ordered pursuant to s.546(1) – no order as to costs. Legislation: Fair Work Act 2009 (Cth) ss. 44, 45, 99, 117, 323, 340, 343, 539, 545, 546, 547, 550, 570.
Food, Beverage and Tobacco Manufacturing Award 2020
Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848
Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Sellars v Adelaide Petroleum NL [1994] HCA 4
Tabet v Gett [2010] HCA 12; 240 CLR 537
Trade Practices Commission v CSR Ltd [1990] FCA 762
Veeraragoo v Goldbreak Holdings (No 2) [2018] FCA 1448
Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 5 February 2024 The Applicant: Appearing in person The First Respondent: No appearance The Second Respondent: Appearing in person The Third Respondent: Appearing in person ORDERS
MLG 2956 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAU SOON LIN
Applicant
AND: MAX BEAN PTY LTD
First Respondent
XIAO XIAO
Second Respondent
KIM WANG
Third Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
13 MAY 2024
THE COURT ORDERS THAT:
1.The First Respondent pay $9,067.82 to the Applicant in compensation for loss suffered because of its contraventions of the Fair Work Act 2009 (Cth) (Act).
2.The Respondents pay pecuniary penalties to the Applicant as follows:
(a)The First Respondent pay pecuniary penalties totalling $20,000 for its contraventions of the Act;
(b)The Second Respondent pay pecuniary penalties totalling $4,000 for her contraventions of the Act; and
(c)The Third Respondent pay pecuniary penalties totalling $4,000 for her contraventions of the Act.
3.The compensation and pecuniary penalties at orders 1 and 2 are to be paid to the Applicant within 120 days.
4.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note:…
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- AGLC
- Lin v Max Bean Pty Ltd (No 2) [2024] FedCFamC2G 431
- Case
- [2024] FedCFamC2G 431
- Decision Date
CaseChat Overview and Summary
The Court found that the Third Respondent, Ms Wang, contravened section 340 of the Act by dismissing Mr Lin for reasons that included his proposed exercise of his workplace right to take paid personal leave, and also contravened section 343 by threatening to dismiss Mr Lin with the intent to coerce him not to exercise that right. The Second Respondent, Ms Xiao, was found to be involved in these contraventions. The First Respondent, Max Bean Pty Ltd, was found to have contravened sections 45 and 323 of the Act by failing to pay Mr Lin various entitlements including casual loading, overtime, annual leave loading, notice pay, personal/carer’s leave, and annual leave loading on accrued but unused annual leave. The Second Respondent was also found to be involved in these contraventions. The Court ordered pecuniary penalties and compensation for Mr Lin pursuant to section 546(1) of the Act, but made no order as to costs.
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
For the reasons delivered on 30 November 2023, it was declared that:·The First and Third Respondents contravened s.340 of the Act by dismissing Mr Lin for reasons that included the proposed exercise of his workplace right to take paid personal leave (Declaration 1(a)) and also contravened s.343 of the Act by threatening to dismiss Mr Lin with the intent to coerce him not to so exercise that right (Declaration 1(b)). The Second Respondent was involved in those respective contraventions within the meaning of s.550 of the Act (Declaration 2).·The First Respondent contravened ss.45 and 323 of the Act by not paying Mr Lin:(a)the 25% casual loading to which he was entitled under cl.10.1 of the Food, Beverage and Tobacco Manufacturing Award 2020 (Award) for the period 27 July 2020 to 4 July 2021 (Declaration 3);(b)for overtime worked per cl.23.2 of the Award and to which he was entitled in the period 5 July 2021 to 30 September 2021 (Declaration 4);(c)the annual leave loading component for leave taken on 20 August 2021 to which he was entitled under cl.25.6 of the Award (Declaration 5);(d)one weeks’ notice pay following his dismissal, pursuant to s.117(2)(b) of the National Employment Standards in the Act (Declaration 6);(e)for personal/carer’s leave being for 30 September 2021 pursuant to s.99 of the Act (Declaration 7);(f)for annual leave loading on his accrued but unused annual leave following his dismissal pursuant to cl.25.12 of the Award (Declaration 8),and the Second Respondent was involved in each of the contraventions at (a) to (f) (Declaration 9). These reasons address the remaining questions as to the appropriate relief (if any) to be ordered for the respective contraventions. FACTUAL CONTEXT The parties Max Bean Pty Ltd is the First Respondent company, which operated (and operates) a food manufacturing business located at Fairfield, in the State of Victoria. Ms Xiao Xiao is the Second Respondent, who is and was at all material times a director of the Company. Ms Kim Wang is the Third Respondent, who is and was at all material times the factory manager of the First Respondent. The Third Respondent was a former director of the First Respondent company and was the day to day manager and decision maker on behalf of the First Respondent in relation to, at least, decisions about matters concerning the Applicant’s employment. Mr Pau Soon Lin is the Applicant, who was employed by the First Respondent company as a factory worker for some 14 months prior to his dismissal. The 30 November 2023 judgement It is unnecessary to repeat the Court’s findings recorded in the judgement of 30 November 2023 in their entirety. For present purposes, the following are most pertinent.The adverse action and coercion Some weeks prior to cessation of the Applicant’s employment, the Third Respondent was becoming frustrated with the Applicant’s conduct. On 14 August 2021, the Third Respondent had initiated an exchange with the Applicant wherein she raised company expectations including in relation to taking of leave. On that occasion, the Third Respondent had proposed a chat to see whether they could continue working together happily and it was agreed that they would talk the following week but there was no evidence that such discussion took place.