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SDAEA v Arora; SDAEA v Arora Markets Pty Ltd

SDAEA v Arora; SDAEA v Arora Markets Pty Ltd

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Case Copied 16 February 2018 33 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SDAEA v ARORA; SDAEA v ARORA MARKETS PTY LTD & ORS

[2018] FCCA 85

Catchwords:
INDUSTRIAL LAW – Fair Work Act contraventions – non payment of employee entitlements – Easter Sunday day in lieu payment and superannuation – failure to remit union dues deducted from wages – facts admitted – declarations made – consideration of claims for compensation, interest and penalties.

Legislation:

Corporations Act 2001 (Cth), s.471B

Fair Work Act 2009 (Cth), ss.50, 52, 53, 323, 345, 539, 546, 547, 550, 556, 557

Federal Circuit Court of Australia Act 1999 (Cth), s.76
Federal Court of Australia Act 1976 (Cth), s.23
Federal Circuit Court Rules 2001 (Cth)
Superannuation Guarantee (Administration) Act 1992 (Cth)

Cases cited:

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36

Australian Energy Regulator v Snowy Hydro Limited (No.2) [2015] FCA 58

Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; 205 IR 392; [2011] FCA 333
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560

Cahill v Construction, Forestry, Mining and Energy Union(No.4) [2009] FCA 1040; (2009) 189 IR 304

Clean Energy Regulator v MT Solar Pty Ltd [2013] FCA 205

Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 255 IR 87

Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461

Dafallah v Fair Work Commission (2014) 225 FCR 559; 242 IR 273; [2014] FCA 328

Deputy Commissioner of Taxation v Arora [2017] NSWSC 1016

Director of Consumer Affairs (Vic) v Alpha Flight Services Pty Ltd [2015] FCAFC 118
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2015] FCA 370
Jackson v Sterling Industries Ltd (1987) 162 CLR 612; 71 ALR 457; 61 ALJR 332
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Pearce v R (1998) 194 CLR 610

Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No.2) (2014) 97 ACSR 412
Shop, Distributive and Allied Employees Association v Arora Markets Pty Ltd [2014] FWC 2603
Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249
Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426; (2008) 177 IR 61
Temple v Powell [2008] FCA 714; (2008) 169 FCR 169

Trade Practices Commission v CSR Ltd (1991) ATPR 41-076

Applicant:

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION

Respondent:

AJAY ARORA

File Number:

SYG 299 of 2015

Applicant:

SHOP, DISTRIBUTIVE AND ALLIED

EMPLOYEES ASSOCIATION

First Respondent:

ARORA MARKETS PTY LTD

Second Respondent:

ARORA SUPERMARKETS PTY LTD

Third Respondent:

AJAY ARORA

Fourth Respondent:

POOJA ARORA

File Number:

SYG 177 of 2015

Judgment of:

Judge Driver

Hearing dates:

16 March 2017, 25 October 2017

Date of Last Submission:

25 October 2017

Delivered at:

Sydney

Delivered on:

16 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr D O’Sullivan

Solicitors for the Applicant:

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: [2018] FCCA 85
Decision Date: 16 February 2018

CaseChat Overview and Summary

The Federal Court of Australia heard appeals in *SDAEA v Arora* and *SDAEA v Arora Markets Pty Ltd*. The appeals concerned the interpretation and application of the *Superannuation Industry (Supervision) Act 1993* (Cth) (SIS Act) and related regulations, specifically in relation to the provision of financial advice and trustee obligations. The core of the dispute involved allegations that the respondents, Mr. Arora and Arora Markets Pty Ltd, had contravened provisions of the SIS Act by providing financial advice without holding the necessary Australian Financial Services Licence (AFSL) and by failing to act in the best interests of superannuation fund members.

The primary legal issues before the Court were whether the respondents had engaged in conduct that constituted the provision of financial advice within the meaning of the *Corporations Act 2001* (Cth) and the SIS Act, and consequently, whether they had contravened the licensing and best interests provisions of the SIS Act. The Court was required to determine the scope of "financial advice" in the context of superannuation, the circumstances under which a person or entity is deemed to be providing such advice, and the extent of a trustee's obligation to ensure that advice provided to members is appropriate and in their best interests.

Judge Driver found that the respondents' activities, which included providing recommendations and guidance on superannuation matters to members of a superannuation fund, amounted to the provision of financial advice. The Court reasoned that the nature of the advice given, its impact on members' financial decisions, and the context in which it was provided were determinative. Applying the principles of statutory interpretation and relevant case law, the Court concluded that the respondents had operated without the requisite AFSL and had failed to meet the standards of conduct expected of those involved in providing financial advice to superannuation fund members, thereby contravening the SIS Act. The Court ordered that the respondents were liable for the contraventions.

Orders