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Mason v Harrington Corporation Pty Ltd

Mason v Harrington Corporation Pty Ltd

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

MASON v HARRINGTON CORPORATION PTY LTD [2007] FMCA 7

INDUSTRIAL LAW – Pecuniary penalties – breaches of award – underpayment of employees – agreed statement of facts – breaches admitted – same course of conduct – totality principle – factors going to penalty – pecuniary penalties imposed – application of penalty – payment of outstanding wages – interest on outstanding wages.

Workplace Relations Act 1996 (Cth) ss. 717, 719, 722, 824, 841

Ardelle v Spastic Society of Victoria Limited [2001] FCA 220
Australian Communications and Media Authority v Clarity 1 Pty Ltd [2006] FCA 1399
Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited [2001] FCA 383
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714
CPSU, The Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364
Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847
Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Quinn v Martin (1977) 16 ALR 141
Seymour v Stawell Timber Industries Pty Ltd (1985) 70 ALR 391
Textile Clothing and Footwear Union of Australia v Lotus Cove Pty Ltd [2004] FCA 43
Textile Clothing and Footwear Union of Australia v Southern Cross Clothing Pty Ltd [2006] FCA 325
Trade Practices Commission v CSR Ltd [1991] ATPR 52,135
Trade Practices Commission v TNT Australia Pty Ltd [1995] ATPR 40,161

Liquor and Allied Industries Catering, Café, Restaurant, Etc. (Australian Capital Territory) Award 1995 clauses 18, 19, 28, 29.1.1, 29.2.1, 34.6, 34.13

Applicant: GREGORY JAMES MASON

Respondent: HARRINGTON CORPORATION PTY LTD T/AS PANGAEA RESTAURANT & BAR

File Number: CAG16 of 2006

Judgment of: Mowbray FM

Hearing dates: 10, 11 July 2006

Delivered at: Canberra

Delivered on: 16 January 2007
REPRESENTATION

Counsel for the Applicant: Mr C O'Grady

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr J Korn
ORDERS
(1)The respondent pay the Commonwealth the following penalties for breaches of the Liquor and Allied Industries Catering, Café, Restaurant, Etc. (Australian Capital Territory) Award 1995 between August and October 2005:
(a)$16,500 for the breach of clause 19 of the Award
(b)$20,000 for the breach of clause 28 of the Award
(c)$6,500 for the breach of clause 29.2.1 of the Award
(d)$7,500 for the breach of clause 29.1.1 of the Award
(e)$6,000 for the breach of clause 34.6 of the Award
(f)no penalty for the breach of clause 34.13 of the Award
(g)$7,500 for the breach of clause 18 of the Award.

(2)Payment of the penalties in order 1 be made within 60 days.
(3)The respondent pay Mr Sorrosa the outstanding underpayment of $1,074.50 by 31 January 2007.
(4)The respondent pay Ms Cabisidan the outstanding underpayment of $2,741.83 by 31 January 2007.
(5)The respondent pay interest on each sum referred to in Orders 3 and 4 at the rate of 6.5 per cent per…

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: [2007] FMCA 7
Decision Date

CaseChat Overview and Summary

The Federal Magistrates Court heard an application by the Commonwealth, represented by the Office of Workplace Services, against Harrington Corporation Pty Ltd (the Corporation), a company that traded as Pangaea Restaurant and Bar. The applicant sought pecuniary penalties for breaches of the Liquor and Allied Industries Catering, Café, Restaurant, Etc. (Australian Capital Territory) Award 1995, payment to two employees for underpayments during their period of employment, and payment of interest on the underpayments. The Corporation admitted the breaches in an Agreed Statement of Facts. The court had to determine the appropriate penalty which should be imposed. The court found that the Corporation committed seven breaches of the Award between August and October 2005. The court imposed penalties totalling $64,000 to the Commonwealth for these breaches. The court also ordered the Corporation to pay Mr Sorrosa $1,074.50 and Ms Cabisidan $2,741.83 for underpayments and 6.5 per cent per annum interest on the underpayments. The court ordered the penalties to be paid within 60 days, with the underpayments and interest to be paid by 31 January 2007.

Orders