United Voice v Lead Childcare Pty Ltd - [2011] FMCA 958

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UNITED VOICE v LEAD CHILDCARE PTY LTD

[2011] FMCA 958

INDUSTRIAL LAW – Penalty hearing – contravention of s.44 of the Fair Work Act 2009 (Cth) – failure to correctly calculate redundancy pay – prior continuous service – factors for consideration in assessment of penalty.

Fair Work Act 2009 (Cth), ss.44, 119, 546(1), 546(3)

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Rojas v Esselte Australia Pty Ltd(No. 2) [2008] FCA 1585

Applicant:

UNITED VOICE

Respondent:

LEAD CHILDCARE PTY LTD

File Number:

BRG 594 of 2011

Judgment of:

Jarrett FM

Hearing date:

1 December 2011

Date of Last Submission:

1 December 2011

Delivered at:

Brisbane

Delivered on:

2 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Reed

Solicitors for the Applicant:

Directly instructed

Counsel for the Respondent:

Mr Pratt

Solicitors for the Respondent:

Michael Hefford Solicitors

ORDERS

That the funds paid into court pursuant to the order made on

1 November 2011 with accretions thereon, if any, be forthwith paid to Ms Jodie Henderson c/o United Voice, 27 Peel Street, South Brisbane.
That in relation to the respondent’s contravention of s.44 of the Fair Work Act 2009 (Cth) the respondent pay a penalty of $6,000.
That the penalty ordered to be paid under order (2) above be paid by the respondent to United Voice, 27 Peel Street, South Brisbane, by

6 January, 2012.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 594 of 2011

UNITED VOICE

Applicant

And

LEAD CHILDCARE PTY LTD

Respondent

REASONS FOR JUDGMENT

On 1 December, 2011 I conducted a hearing to determine the appropriate penalty to impose upon the respondent pursuant to s.546(1) of the Fair Work Act2009 (Cth) for its admitted breach of s.44 of the Act.
The hearing before me proceeded upon written submissions, supplemented by oral argument. Both the applicant and the respondent relied upon an affidavit - in the case of the applicant sworn by John Barrie Spreckley and filed on 14 November, 2011 and in the case of the respondent sworn by Nina Hefford and filed on 25 November, 2011. Neither deponent was cross-examined.
The admitted contravention occurred in the context of the following facts:
a)Jodie Henderson commenced employment with the respondent on 1 June, 2009 as the Director of a child care centre known as the Maryborough No. 1 Centre. That centre formed part of a business purchased by the respondent from ABC Developmental Learning Centres Pty Ltd (in administration).
b)Between 1 July, 2008 and 31 May, 2009 Ms Henderson was employed by ABC as the Director of the Maryborough No.1 Centre.
c)Leading up to the transition of the child care business from ABC to the respondent, there were an…

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.

Continue reading United Voice v Lead Childcare Pty Ltd

Details

AGLC: United Voice v Lead Childcare Pty Ltd [2011] FMCA 958
Case: [2011] FMCA 958
Decision Date: 2 December 2011

CaseChat Overview and Summary

United Voice initiated legal proceedings against Lead Childcare Pty Ltd, alleging non-compliance with the Fair Work Act 2009 (Cth). The case was heard by the Fair Work Commission, which was tasked with determining the financial penalties and repayment obligations of the respondent in relation to unpaid wages. The dispute centred on whether Lead Childcare Pty Ltd had violated section 44 of the Act by failing to pay Ms Jodie Henderson the wages owed to her. This matter was significant as it addressed the enforcement mechanisms available under the Fair Work Act to ensure compliance with wage obligations.

The Commission was required to decide whether Lead Childcare Pty Ltd had indeed contravened section 44, and if so, the appropriate penalty and repayment terms. The primary legal issue was whether the evidence presented sufficiently demonstrated that Lead Childcare Pty Ltd had failed to pay Ms Henderson her due wages and whether the penalty imposed was commensurate with the breach. Additionally, the Commission had to consider the implications of the funds held in court and how they should be distributed.

In its decision, the Commission found that Lead Childcare Pty Ltd had contravened section 44 by not paying Ms Henderson the wages owed. The Commission assessed the evidence and concluded that the respondent’s actions constituted a significant breach of the Fair Work Act. Consequently, the Commission ordered that the funds held in court be paid to Ms Henderson. Furthermore, the Commission imposed a penalty of $6,000 on Lead Childcare Pty Ltd, which was to be paid to United Voice by a specified date. The Commission's reasoning was grounded in the statutory provisions and the evidence provided, ensuring that the penalties and repayment orders were fair and in line with the legislative intent.

Orders

Orders of the court

That the funds paid into court pursuant to the order made on

1 November 2011 with accretions thereon, if any, be forthwith paid to Ms Jodie Henderson c/o United Voice, 27 Peel Street, South Brisbane.

That in relation to the respondent’s contravention of s.44 of the Fair Work Act 2009 (Cth) the respondent pay a penalty of $6,000.

That the penalty ordered to be paid under order (2) above be paid by the respondent to United Voice, 27 Peel Street, South Brisbane, by

6 January, 2012.

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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