Tahi v Oxican Pty Ltd (No.2) - [2018] FCCA 3904

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAHI v OXICAN PTY LTD (No.2)

[2018] FCCA 3904

Catchwords:
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – assessing penalty – deterrence.

INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – course of conduct.

INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – totality and proportionality.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 351, 557

Federal Circuit Court Rules2001

Construction, Forestry, Mining and Energy Union v BHP Coal Proprietary Limited (No.5) [2013] FCA 1384
Jetgo Australia Holdings Pty Ltd v Goodsall [2015] FCCA 1378
McIver v Healey [2008] FCA 425
Rocky Holdings Pty Limited v Fair Work Ombudsman (2014) 221 FCR 153
Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 949
Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216

Applicant:

KERRY TAHI

Respondent:

OXICAN PTY LTD

File Number:

BRG 1125 of 2016

Judgment of:

Judge Jarrett

Hearing date:

21 December 2018

Date of Last Submission:

21 December 2018

Delivered at:

Brisbane

Delivered on:

21 December 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Carter Newell Lawyers

ORDERS

Pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules2001 order 1 of the orders made on 13 December, 2018 be amended so as to read: The respondent pay to the applicant the sum of $4,223.75 within 30 days of the date of these orders.
A corrigendum to my reasons for judgment delivered on 13 December 2018 be issued which replaces the reference in paragraph 159 with the correct amount of $4,223.75.
Pursuant to s.546(1) of the Fair Work Act 2009 the respondent pay a pecuniary penalty of $10,800 to the applicant.
In the event that the respondent seeks a costs order on a different basis to that of costs fixed in the sum of $16,953.50 then it must notify the applicant of its intention to seek a different order by no later than 4:00pm on 11 January, 2019.
By no later than 4:00pm on 25 January, 2019 the applicant shall file and serve:
(a)written submissions in response to the respondent’s application for costs, either in the terms of the application in a case filed on 19 December, 2019 or as may be communicated by the respondent in accordance with order 2 hereof; and
(b)any affidavit upon which she intends to rely in support of those written submissions.
The respondent may file and serve any reply to the applicant’s written submissions by no later than 4:00pm on 1 February, 2019.
Otherwise judgment on the question of costs is adjourned to a date to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 1125 of 2016

KERRY TAHI

Applicant

And

OXICAN PTY LTD

Respondent

REASONS FOR JUDGMENT

On 13 December 2018, I delivered some reasons for judgment in which…

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 3904
Decision Date: 21 December 2018

CaseChat Overview and Summary

Tahi (the applicant) brought proceedings against Oxican Pty Ltd (the respondent) seeking pecuniary penalty orders for contraventions of the *Fair Work Act 2009* (Cth). The dispute concerned alleged breaches of the National Employment Standards and an applicable award.

The primary legal issue before the Court was the assessment of an appropriate pecuniary penalty for the respondent's contraventions. This involved considering the principles of deterrence, both specific and general, and the need for the penalty to reflect the totality of the respondent's conduct and maintain proportionality.

In assessing the penalty, his Honour Judge Jarrett considered the nature and seriousness of the contraventions, the respondent's objective circumstances, and the need to deter future contraventions by the respondent and others in similar positions. The Court applied principles of statutory interpretation to determine the scope of the respondent's obligations and the impact of its conduct. The Court also considered the respondent's approach to compliance and its engagement with the applicant during the proceedings.

The Court ordered the respondent to pay a pecuniary penalty.

Orders