Ro v Momo Chicken Pty Ltd - [2023] FedCFamC2G 543

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ro v Momo Chicken Pty Ltd [2023] FedCFamC2G 543

File number(s): BRG 144 of 2022

Judgment of: JUDGE EGAN

Date of judgment: 23 June 2023

Catchwords: INDUSTRIAL LAW – imposition of pecuniary penalties – relevant principles – particular factual circumstances taken into account – orders accordingly.

Legislation: Fair Work Act 2009 (Cth) ss. 45, 323, 536, 550 and 557.

Cases cited:
Fair Work Ombudsman v Promoting You Pty Ltd [2012] FMCA 58.

Hornyak v SIMS Integrated Solutions Pty Ltd [2022] FedCFamC2G509.

Kelly v Fitzpatrick [2007] FCA 1080 at [28].

Division: Division 2 General Federal Law

Number of paragraphs: 22

Date of last submission/s: 16 June 2023

Date of hearing: 18 April 2023

Solicitor for the Applicant: Solomons Legal

Solicitor for the Respondents: Ellem Warren Napa Lawyers
ORDERS

BRG 144 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
SIBIN RO

Applicant

AND:
MOMO CHICKEN PTY LTD AS TRUSTEE FOR MOMO CHICKEN & BEER DISCRETIONARY TRUST

First Respondent

PYEONGYEON CHOI

Second Respondent

NANHEE HAN (and another named in the Schedule)

Third Respondent

order made by:

JUDGE EGAN

DATE OF ORDER:

22 June 2023

IT IS ORDERED THAT:
1.The First Respondent pay a pecuniary penalty in the sum of $39,960.00 to ~~Ellem Warren Napa Lawyers~~ Solomons Legal on or before 21 July 2023.
2.The Fourth Respondent pay a pecuniary penalty in the sum of $7,992.00 to ~~Ellem Warren Napa Lawyers~~ Solomons Legal on or before 21 July 2023.

AND IT IS NOTED THAT:
A.These Orders have been amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction

On 24 February 2023, the Court made the following declarations and orders:
“1. The First Respondent contravened section 45 of the Fair Work Act 2009 (Cth)
(FW Act) because it:
a. failed to pay the Applicant the minimum hourly rate, pursuant to clause
18.1 of the Restaurant Industry Award (Award), during the periods of:
i.        3 August 2020 to 7 February 2021;
ii.        19 April 2021 to 1 August 2021;
b. failed to pay the Applicant penalty rates, pursuant to clauses 23.1 and
24.2 of the Award, at all for working:
i.         on a Saturday;
ii.        on a Sunday;
iii.       from 10.00pm to midnight on Monday to Friday;
iv.       outside of his rostered hours;
c. failed to pay the Applicant the overtime rate required to be paid for working on a public…

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: [2023] FedCFamC2G 543
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Sibin Ro, the applicant, and Momo Chicken Pty Ltd, the first respondent, regarding the underpayment of wages and superannuation in contravention of the Fair Work Act 2009 (Cth). The matter was brought before the Federal Circuit and Family Court of Australia, Division 2, by Judge Egan. The primary legal issues that the court had to decide involved determining the appropriate penalty to be imposed on the first and fourth respondents for their contravention of the Fair Work Act, considering the nature and circumstances of the contraventions, and weighing the principles of deterrence and proportionality.

In reaching a decision, Judge Egan considered the relevant statutory provisions and legal precedents, emphasising the importance of compliance with workplace relations legislation and the need for penalties to serve both deterrent and punitive purposes. The court took into account the admitted contraventions, the steps taken by the first respondent to rectify the situation, and the repayment of the underpaid amounts. Judge Egan also acknowledged the cooperation between the parties in filing an extensive list of admitted facts, which helped to save court time and expense.

Ultimately, the court found that the contraventions were part of a single course of conduct and imposed penalties that reflected the seriousness of the breaches while also considering the non-deliberate nature of the respondents' actions. The court decided that the first respondent should pay a pecuniary penalty of $39,960.00, and the fourth respondent should pay $7,992.00, to be paid to the applicant's solicitors within 28 days of the judgment. The court also noted that no order as to costs would be made against the fifth respondent, who was no longer a party to the proceedings.

The final orders of the court mandated that the first respondent pay $39,960.00 and the fourth respondent pay $7,992.00 to the applicant's solicitors on or before 21 July 2023. The court's decision was based on a careful assessment of the admitted contraventions, the principles of deterrence and proportionality, and the specific factual circumstances of the case.

Orders