Rajogopalan v Brinker Australia Pty Ltd - [2008] FMCA 311

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAJOGOPALAN v BRINKER AUSTRALIA PTY LTD

[2008] FMCA 311

INDUSTRIAL LAW – Application of penalty – breach of Workplace Relations Act 1996 – contravention of ss.337(8), 337(9), 342(1) – two breaches of the company’s own Australian Workplace Agreement – consideration of penalty – payment of damages to ex-employee.

Uniform Civil Procedure Rules 2005
Crimes Act 1914 (Cth) s.4AA
Workplace Relations Act 1996 (Cth) ss.6, 167, 324, 326, 337, 340, 341, 342, 347, 407, 718, 719, 826
Workplace Relations (Workchoices) Act 2005 Amendments

Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] FCA 383
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Construction, Forestry, Mining and Energy Union v Hamberger (2003) 127 FCR 309
Cotis v Pow Juice [2007] FMCA 140
CPSU (Community and Public Service Union) v Telstra Corporation [2001] FCA 1364
Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847
Hodgkiss v Sunland Construction (Qld) Pty Ltd [2006] FCA 1566
Kelly v Fitzpatrick [2007] FCA 1080
Markarian v R (2005) 228 CLR 357
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Wong v R [2001] HCA 64

Applicant:

SUNDAR RAJOGOPALAN

Respondent:

BRINKER AUSTRALIA PTY LTD

File number:

SYG 2339 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

7 March 2008

Delivered at:

Sydney

Delivered on:

14 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr G Farmer

Solicitors for the Applicant:

Ms A Peters of Freehills

Respondent:

No appearance

DECLARATIONS

A declaration that, by s.826 of the Act the respondent contravened s.337(8) of the Act.
A declaration that, by s.826 of the Act the respondent contravened s.337(9) of the Act.
A declaration that, by s.826 of the Act the respondent contravened s.342(1) of the Act.
A declaration that the respondent breached clause 5(c) of the Chilli’s Texas Grill Australian Workplace Agreement (AWA) in respect of two separate breaches.

ORDERS

In respect of the contravention of s.337(8), failure to provide prior access by AWA of the Workplace Relations Act 1996 (Cth) the respondent pay a penalty of $6,000.
In respect of the contravention of s.337(9), failure to provide an information statement of the Workplace Relations Act 1996 (Cth) the respondent pay the penalty of $6,000.
In resect of the breach of s.342(1), failure to lodge an AWA within fourteen days of the Workplace Relations Act 1996 (Cth) the respondent pay the penalty of $3,000.
In respect of the beach of clause 5(c) of the Chilli’s Texas Grill AWA in that it failed to advise the employee of her core hours of employment the respondent pay the penalty of $12,000.
In respect of the breach of clause 5(c) of the Chilli’s Texas Grill AWA in that the respondent did not provide the employee with a minimum 20 hours paid employment each fortnight from 13 October 2006 until 21 December 2006 and that the respondent pay the penalty of $12,000.
Pursuant to s.841 of the Act, the respondent shall pay the penalties in orders one to five to be made…

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: [2008] FMCA 311
Decision Date: 14 March 2008

CaseChat Overview and Summary

The matter of Rajogopalan v Brinker Australia Pty Ltd was heard before the Fair Work Commission, where the applicant, Rajogopalan, sought penalties against the respondent, Brinker Australia Pty Ltd, for various breaches of employment laws. The disputes centred around the alleged non-compliance with specific provisions of the Workplace Relations Act 1996 (Cth) and the Chilli’s Texas Grill Australian Workplace Agreement (AWA). The applicant argued that the respondent failed to provide appropriate access and information regarding AWAs, did not lodge the AWA within the prescribed time frame, and did not comply with the terms of the Chilli’s Texas Grill AWA concerning the employee's core hours and guaranteed hours of work.

The primary legal issues before the court were whether the respondent contravened sections 337(8) and 337(9) of the Workplace Relations Act 1996 (Cth) by not providing prior access and an information statement for the AWA, and whether it failed to lodge the AWA within the required timeframe as stipulated by section 342(1) of the Act. Furthermore, the court had to determine if the respondent breached clause 5(c) of the Chilli’s Texas Grill AWA by not advising the employee of her core hours and by not providing a minimum of 20 hours of paid employment each fortnight. The court also needed to consider the appropriate penalties for these breaches and whether any compensation should be awarded to the employee, Kirrily Joy Piper.

The Fair Work Commission found that the respondent had indeed contravened the specified sections of the Workplace Relations Act and the terms of the Chilli’s Texas Grill AWA. The court assessed the nature and extent of the breaches, taking into account the statutory penalties prescribed for each offence. It was determined that the respondent was liable to pay penalties for each contravention, with specific amounts set for non-compliance with AWA access, information statement provision, timely lodging of the AWA, and the specific terms of the Chilli’s Texas Grill AWA. Additionally, the respondent was required to compensate the employee for any losses incurred due to the breaches. The penalties and compensation were calculated according to the applicable legal provisions, with specific instructions for the payment timelines and rates of interest.

The court ordered the respondent to pay various penalties totalling $33,000 for the breaches of the Workplace Relations Act and the Chilli’s Texas Grill AWA, to be paid to the Commonwealth within 28 days. Additionally, the respondent was required to pay $720.25 plus interest to Kirrily Joy Piper within the same timeframe. No order was made regarding the costs of the proceedings.

Orders

Orders of the court

In respect of the contravention of s.337(8), failure to provide prior access by AWA of the Workplace Relations Act 1996 (Cth) the respondent pay a penalty of $6,000.

In respect of the contravention of s.337(9), failure to provide an information statement of the Workplace Relations Act 1996 (Cth) the respondent pay the penalty of $6,000.

In resect of the breach of s.342(1), failure to lodge an AWA within fourteen days of the Workplace Relations Act 1996 (Cth) the respondent pay the penalty of $3,000.

In respect of the beach of clause 5(c) of the Chilli’s Texas Grill AWA in that it failed to advise the employee of her core hours of employment the respondent pay the penalty of $12,000.

In respect of the breach of clause 5(c) of the Chilli’s Texas Grill AWA in that the respondent did not provide the employee with a minimum 20 hours paid employment each fortnight from 13 October 2006 until 21 December 2006 and that the respondent pay the penalty of $12,000.

Pursuant to s.841 of the Act, the respondent shall pay the penalties in orders one to five to be made within 28 days to consolidated revenue to the Commonwealth.

As a result of the breaches of clause 5(c) of the Chilli’s Texas Grill AWA the respondent pay Kirrily Joy Piper the amount of $720.25 plus interest from 21 December 2006 until the date of this decision calculated at a rate in accordance with the Uniform Civil Procedure Rules 2005. This amount to be paid to Ms Piper within 28 days.

No order as to costs.

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

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