United Voice v MDBR123 Pty Ltd (No 2) - [2015] FCA 76

FEDERAL COURT OF AUSTRALIA
United Voice v MDBR123 Pty Ltd (No 2) [2015] FCA 76

Citation: United Voice v MDBR123 Pty Ltd (No 2) [2015] FCA 76

Parties: UNITED VOICE v MDBR123 PTY LTD and DENIS HINTON

File number: QUD 498 of 2013

Judge: RANGIAH J

Date of judgment: 4 February 2015

Catchwords:
INDUSTRIAL LAW – pecuniary penalty orders – determination of appropriate penalty amount – totality principle – deliberate and flagrant breach – need for deterrence – other genuine reasons for adverse action – respondent made reasonable offer to settle – pecuniary penalty warranted – penalty to be paid to applicant in recognition of risk and expense of proceedings

COMPENSATION – termination of employment – loss of past earnings – loss of future earnings – loss of ability to enjoy paid holidays – compensation awarded

Legislation: Fair Work Act 2009 (Cth) ss 340, 346, 539, 545, 546(2)(a), 546(2)(b) and 546(3)

Cases cited: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 cited
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 5) [2013] FCA 1384 cited
Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 cited
Kelly v Fitzpatrick (2007) 166 IR 14 cited
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 cited
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 cited
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (No 2) (2001) 110 IR 372 cited
Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 949 cited

Date of hearing: 4 February 2015

Place: Brisbane

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 26

Counsel for the Applicant: Mr RE Reed

Solicitor for the Applicant: Hall Payne Lawyers

Counsel for the Respondents: Mr JE Murdoch QC

Solicitor for the Respondents: Carter Newell Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

FAIR WORK DIVISION

QUD 498 of 2013

BETWEEN:
UNITED VOICE
Applicant

AND:
MDBR123 PTY LTD
First Respondent

DENIS HINTON
Second Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

4 FEBRUARY 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The first respondent pay a pecuniary penalty of $6,000 pursuant to s 546 of the Fair Work Act 2009 (Cth) for its contraventions of ss 340 and 346 of the Fair Work Act.
2.The second respondent pay a pecuniary penalty of $4,000 pursuant to s 546 of the Fair Work Act for his contraventions of ss 340 and 346 of the Fair Work Act.
3.The pecuniary penalties be paid to the applicant pursuant to s 546(3) of the Fair Work Act.
4.The respondents pay $6,870 compensation to Ms Margaret Smith pursuant to s 545 of the Fair Work Act for loss and damage suffered because of their contraventions of the Fair Work Act, inclusive of $458 interest pursuant to s 547 of the Fair Work Act.
5.Paragraph…

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] FCA 76
Decision Date: 4 February 2015

CaseChat Overview and Summary

United Voice, acting on behalf of Ms Margaret Smith, sought relief against MDBR123 Pty Ltd and its director, the second respondent, for breaches of the Fair Work Act 2009 (Cth). The dispute centred on the termination of Ms Smith's employment, which United Voice claimed was unlawful. The Fair Work Commission referred the matter to the Federal Court for determination of appropriate penalties and compensation.

The court was required to determine the appropriate pecuniary penalty for the breaches of sections 340 and 346 of the Fair Work Act. Additionally, it had to assess the compensation owed to Ms Smith for her loss of past and future earnings, as well as her loss of ability to enjoy paid holidays due to the unlawful termination. The court also needed to decide whether the penalties should be paid to United Voice in recognition of their efforts in pursuing the matter.

In its reasoning, the court held that the breaches were deliberate and flagrant, necessitating a penalty to serve as a deterrent. The court considered the totality principle, the respondent's reasonable offer to settle, and other genuine reasons for adverse action. The penalty amounts were set at $6,000 for the first respondent and $4,000 for the second respondent, with both to be paid to United Voice. The court also awarded Ms Smith $6,870 in compensation, including interest.

The court's orders included the payment of the pecuniary penalties to United Voice, the compensation to Ms Smith, and the vacating of a previous order made on 10 February 2014. There was no order as to costs. The court's decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The first respondent pay a pecuniary penalty of $6,000 pursuant to s 546 of the Fair Work Act 2009 (Cth) for its contraventions of ss 340 and 346 of the Fair Work Act.

2. The second respondent pay a pecuniary penalty of $4,000 pursuant to s 546 of the Fair Work Act for his contraventions of ss 340 and 346 of the Fair Work Act.

3. The pecuniary penalties be paid to the applicant pursuant to s 546(3) of the Fair Work Act.

4. The respondents pay $6,870 compensation to Ms Margaret Smith pursuant to s 545 of the Fair Work Act for loss and damage suffered because of their contraventions of the Fair Work Act, inclusive of $458 interest pursuant to s 547 of the Fair Work Act.

5. Paragraph 11 of the order made on 10 February 2014 be vacated.

6. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	United Voice v MDBR123 Pty Ltd (No 2) [2015] FCA 76
Parties:	UNITED VOICE v MDBR123 PTY LTD and DENIS HINTON
File number:	QUD 498 of 2013
Judge:	RANGIAH J
Date of judgment:	4 February 2015
Catchwords:	INDUSTRIAL LAW – pecuniary penalty orders – determination of appropriate penalty amount – totality principle – deliberate and flagrant breach – need for deterrence – other genuine reasons for adverse action – respondent made reasonable offer to settle – pecuniary penalty warranted – penalty to be paid to applicant in recognition of risk and expense of proceedings COMPENSATION – termination of employment – loss of past earnings – loss of future earnings – loss of ability to enjoy paid holidays – compensation awarded
Legislation:	Fair Work Act 2009 (Cth) ss 340, 346, 539, 545, 546(2)(a), 546(2)(b) and 546(3)
Cases cited:	Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 cited Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 5) [2013] FCA 1384 cited Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 cited Kelly v Fitzpatrick (2007) 166 IR 14 cited National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 cited Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 cited Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (No 2) (2001) 110 IR 372 cited Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 949 cited
Date of hearing:	4 February 2015
Place:	Brisbane
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	26
Counsel for the Applicant:	Mr RE Reed
Solicitor for the Applicant:	Hall Payne Lawyers
Counsel for the Respondents:	Mr JE Murdoch QC
Solicitor for the Respondents:	Carter Newell Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 498 of 2013

JUDGE:	RANGIAH J
DATE OF ORDER:	4 FEBRUARY 2015
WHERE MADE:	BRISBANE