Murphy v Rooney - [2019] FCCA 547

FEDERAL CIRCUIT COURT OF AUSTRALIA

MURPHY v ROONEY

[2019] FCCA 547

Catchwords:
INDUSTRIAL LAW – Failure to pay wages – deliberateness of conduct – relief by way of compensation – factors going to penalty – penalty imposed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.2C

Crimes Act 1914 (Cth), s.4AA

Fair Work Act 2009 (Cth), ss.12, 323, 545, 546, 547

Cases cited:

Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113
FairWork Ombudsman v Ever Australia Pty Ltd [2015] FCCA 1999
FairWork Ombudsman v Jackson (No.2) [2016] FCCA 1181
FairWork Ombudsman v Java Spice Australia Pty Ltd [2015] FCCA 2930

Applicant:

JOSEPH ANDREW MURPHY

Respondent:

DANIEL PIO ROONEY

File Number:

MLG 3140 of 2018

Judgment of:

Judge A Kelly

Hearing date:

8 March 2019

Date of Last Submission:

8 March 2019

Delivered at:

Melbourne

Delivered on:

12 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr Brimfield

Solicitors for the Applicant:

Fitzroy Legal Service Inc

The Respondent:

No appearance

THE COURT DECLARES THAT:

The Respondent contravened s.323 of the Fair Work Act 2009(Cth) (Act), by failing to pay the applicant the amounts due in respect of the work performed by him on 10, 11 and 12 March 2018.

THE COURT ORDERS THAT:

The Respondent pay the applicant the sum of $473.33.
The Respondent pay a penalty pursuant to s.546(1) of the Act for his contraventions set out in paragraph 1 of this Order fixed in the sum of $3,000.
The Respondent pay the said penalty of $3,000 to the Fitzroy Legal Service Inc (ABN 13 421 440 211) within 28 days of this Order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3140 of 2018

JOSEPH ANDREW MURPHY

Applicant

And

DANIEL PIO ROONEY

Respondent

REASONS FOR JUDGMENT

By application filed on 28 August 2018, the applicant seeks relief against the respondent employer for the alleged non-payment of wages. The claims for relief sought in this Court were brought pursuant to s.323 of the Fair Work Act 2009 (Cth) (Act) and for breach of agreement.
When the matter was listed for directions on 14 November 2018, there was no appearance by the respondent. An order was made permitting substituted service of the application. A further order was made that in default of the respondent filing a notice of address for service, the matter proceed as an undefended hearing on 8 March 2019.
Service was effected in accordance with the order made on 14 November 2018 and a notice of address for service was not filed. The respondent was notified of the hearing date. On 8 March 2019, when the matter was called, there was no appearance by or on behalf of the respondent.
The applicant is a citizen of the United Kingdom who travelled in Australia on a Working Holiday Maker visa.
On 9 April 2018, the applicant responded by SMS to a job advertisement posted on the Gumtree website. The advertisement offered various jobs including the door-to-door distribution of advertising flyers…

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.

Continue reading Murphy v Rooney

Details

AGLC: Murphy v Rooney [2019] FCCA 547
Case: [2019] FCCA 547
Decision Date: 12 March 2019

CaseChat Overview and Summary

In *Murphy v Rooney*, heard before Judge A Kelly, the applicant, Murphy, brought proceedings against the respondent, Rooney, alleging a failure to pay wages. The core of the dispute concerned the deliberateness of Rooney's conduct in withholding these payments and the appropriate relief to be granted, specifically by way of compensation, alongside considerations for any penalty.

The court was required to determine whether Rooney's failure to pay wages was deliberate, and if so, what compensation was due to Murphy. Furthermore, the court had to assess the factors relevant to the imposition of a penalty on Rooney for this conduct.

Judge Kelly found that Rooney's failure to pay wages was indeed deliberate. In reaching this conclusion, the court considered the circumstances surrounding the non-payment and the respondent's actions or inactions. The court applied principles of industrial law relating to wage entitlements and the consequences of deliberate non-compliance. Based on these findings, a penalty was imposed on Rooney.

Orders