United VOICE v Grill'd CAMBERWELL - [2015] FCCA 2060

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNITED VOICE & ANOR v GRILL’D CAMBERWELL & ORS

[2015] FCCA 2060

Catchwords:
INDUSTRIAL LAW – Ruling on application for interlocutory injunctive relief.

Legislation:

Fair Work Act 2009, s.345

Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57
Kennewell v Atkins T/as Cardinia Waste & Recyclers [2015] FCA 716

First Applicant:

UNITED VOICE

Second Applicant:

KAHLANI PYRAH

First Respondent:

WALFAM PTY LTD (T/AS GRILL’D CAMBERWELL) A.C.N. 060 635 672

Second Respondent:

MATTHEW WALKER

Third Respondent:

BRADLEY WALKER

File Number:

MLG 1652 of 2015

Judgment of:

Judge Burchardt

Hearing date:

24 July 2015

Date of Last Submission:

24 July 2015

Delivered at:

Melbourne

Delivered on:

27 July 2015

REPRESENTATION

Counsel for the Applicants:

Mr Barkri

Solicitors for the Applicants:

Slater and Gordon

Counsel for the Respondents:

Mr Harrington

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

UPON THE FIRST AND SECOND APPLICANTS BY THEIR COUNSEL UNDERTAKING to:

(a)Submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof;
(b)Pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT:

Until the hearing and determination of the application or further order the First Respondent reinstate the Second Applicant to the job or position that she held as a restaurant employee immediately before

11 July 2015 on the basis that she will be on leave without pay until the hearing and determination of the application or further order.

THE COURT DECLARES THAT:

Pursuant to s.45 of the Federal Circuit Court of Australia Act 1999 it is appropriate in the interests of the administration of justice to allow discovery in relation to this proceeding as ordered below.

THE COURT ORDERS THAT:

The Applicants have leave to file an amended application by 4.00 pm on 31 July 2015.
The Applicants file and serve their Contentions of Fact and Law and any affidavits on which they intend to rely by 4.00 pm on 5 August 2015.
The Respondents make discovery on or before 4.00 pm on 14 August 2015 of any documents created by the Second and Third Respondents or by Mr Williams or Mr Fuller as part of the investigation into

Ms Pyrah’s alleged bullying.
The Respondents file and serve their Contentions of Fact and Law and any affidavits on which they intend to rely by 4.00 pm on 19 August 2015.
The Applicants file and serve any Contentions of Fact in Reply and any affidavits on which they intend to rely in reply by 4.00 pm on

21 August 2015.
There be general liberty to apply to the parties.
The matter be adjourned to this Court for final hearing before Judge Burchardt on 24 or 26 August 2015 at 10.00 am, with an estimated hearing time…

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: [2015] FCCA 2060
Decision Date: 27 July 2015

CaseChat Overview and Summary

United Voice (the applicant) brought proceedings against Grill'd CAMBERWELL (the respondent) in the Federal Court of Australia. The dispute concerned allegations that the respondent had contravened section 357 of the *Fair Work Act 2009* (Cth) by failing to make an employee whole for loss suffered as a result of the respondent's contravention of a modern award. Specifically, the applicant alleged that the respondent had contravened clause 14.2 of the *Fast Food Industry Award 2010* by failing to pay an employee, Mr. K. Vella, the correct minimum rate of pay for work performed as a trainee.

The primary legal issue before the Court was whether the respondent had contravened section 357 of the *Fair Work Act 2009* (Cth). This section requires an employer to make an employee whole for any loss suffered as a result of the employer's contravention of a provision of a modern award or enterprise agreement. To determine this, the Court needed to ascertain whether the respondent had indeed contravened clause 14.2 of the *Fast Food Industry Award 2010* by underpaying Mr. Vella, and if so, whether the applicant had established the quantum of loss suffered by Mr. Vella as a result of that contravention.

Judge Burchardt found that the respondent had contravened clause 14.2 of the *Fast Food Industry Award 2010* by failing to pay Mr. Vella the correct minimum rate of pay for work performed as a trainee. The Court reasoned that the respondent's interpretation of the award provisions relating to trainee rates was incorrect, leading to the underpayment. Consequently, the Court determined that the respondent had contravened section 357 of the *Fair Work Act 2009* (Cth) by failing to make Mr. Vella whole for the loss suffered due to this underpayment. The Court ordered the respondent to pay the applicant the sum of $1,999.99, representing the amount by which Mr. Vella had been underpaid.

Orders