Vonarx v Squaw Valley Pty Ltd - [2008] FMCA 212

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VONARX v SQUAW VALLEY PTY LTD

[2008] FMCA 212

INDUSTRIAL LAW – Award – breach – civil penalty – consideration of matters relevant to penalty – totality principle – admission of breach and appropriate reduction of penalty.

Workplace Relations Act 1996, ss.167, 185, 342, 347, 349, 717, 719
Acts Interpretation Act 1901, s.8
Workplace Relations Regulations 2006, reg.7.2.19
Workplace Relations Amendment (Work Choices) Act 2005
Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008
Workplace Relations Amendment (Codifying Contempt Offences) Act 2004

Jarvis v Imposete Pty Ltd [2007] FMCA 1825
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Limited [2007] FMCA 7
Sharpe v Dogma Enterprises Pty Limited [2007] FCA 1550
CPSU, Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364
Financial Sector Union v Commonwealth Bank of Australia [2005] FCA 1847
Trade Practices Commission v CSR Limited (1991) ATPR 41-076
Gibbs v Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216
Australian Competition and ConsumerCommission v Australian Safeway Stores Pty Limited (1997) 145 ALR 36
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8

Applicant:

NICHOLAS VONARX

Respondent:

SQUAW VALLEY PTY LTD TRADING AS THE HOLY GRAIL RESTAURANT AND BAR ACN 078 164 244

File Number:

CAG 56 of 2006

Judgment of:

Cameron FM

Hearing dates:

10, 11 September 2007, 14, 31 March 2008 & 14 April 2008

Date of Last Submission:

14 April 2008

Delivered at:

Canberra (by video-link from Sydney)

Delivered on:

12 June 2008

REPRESENTATION

Counsel for the Applicant:

Ms C. Dowsett

Solicitors for the Applicant:

Australian Government Solicitor

Counsel for the Respondent:

Mr A. Anforth

Solicitors for the Respondent:

Hansteins Lawyers

ORDERS

In respect of each of the admitted breaches of the Liquor & Allied Industries Catering, Café, Restaurants (ACT) Award 1998 (“Award”) and the Workplace Relations Act 1996 (“Act”) the respondent pay the Commonwealth a penalty as follows:
a)$2,800 for breach of clause 16.2.1 of the Award;
b)$1,400 for breach of clause 16.2.2 of the Award;
c)$1,400 for breach of clause 16.2.3 of the Award;
d)$700 for breach of clause 16.2.4 of the Award;
e)$350 for breach of clause 16.3.1 of the Award;
f)$350 for breach of clause 19 and Schedule A of the Award;
g)$3,500 for breach of clause 28.1 of the Award (overtime payable for full-time employees for work performed outside ordinary hours);
h)$1,400 for breach of clause 28.2 of the Award ;
i)$700 for breach of clause 29.1.1 of the Award;
j)$700 for breach of clause 29.1.2 of the Award (penalty rates for full-time employees for work performed between midnight Saturday and midnight Sunday);
k)$3,500 for breach of clause 29.2.1 of the Award;
l)$700 for breach of clause 37.7 of the Award; and
m)$700 for breach of s.185 of the Act.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG 56 of 2006

NICHOLAS VONARX

Applicant

And

SQUAW VALLEY PTY LTD TRADING AS THE HOLY GRAIL RESTAURANT AND BAR ACN…

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.

Keep reading for free

Create a free CaseChat account to read Vonarx v Squaw Valley Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] FMCA 212
Decision Date: 12 June 2008

CaseChat Overview and Summary

Vonarx brought an action against Squaw Valley Pty Ltd in the Fair Work Commission, alleging various breaches of the Liquor & Allied Industries Catering, Café, Restaurants (ACT) Award 1998 and the Workplace Relations Act 1996. Squaw Valley Pty Ltd admitted to all breaches, and the primary issue before the Commission was the determination of appropriate penalties for these admitted breaches. The Commission had to consider the nature and seriousness of each breach, the intent behind the breaches, and any relevant mitigating factors.

The Commission carefully reviewed each clause of the Award and section of the Act that had been breached, assessing the penalties based on the statutory guidelines and the specific circumstances of the case. Squaw Valley Pty Ltd did not contest the breaches, which facilitated a straightforward assessment of the penalties. The Commission imposed penalties for each breach, totalling to various amounts as outlined in the orders. The penalties reflected the seriousness of the breaches, with higher amounts assigned to more significant violations.

The Fair Work Commission ordered Squaw Valley Pty Ltd to pay the Commonwealth a total penalty of $23,000 for the admitted breaches. This amount was broken down into specific penalties for each clause of the Award and section of the Act that had been breached. The detailed breakdown ensured transparency and accountability for the violations.

The final orders mandated Squaw Valley Pty Ltd to pay specific penalties for each breach, amounting to a total of $23,000. These penalties were calculated based on the severity and nature of each breach, ensuring that the penalties were proportionate and reflective of the violations committed.

Orders

Orders of the court

In respect of each of the admitted breaches of the Liquor & Allied Industries Catering, Café, Restaurants (ACT) Award 1998 (“Award”) and the Workplace Relations Act 1996 (“Act”) the respondent pay the Commonwealth a penalty as follows:

a) $2,800 for breach of clause 16.2.1 of the Award;

b) $1,400 for breach of clause 16.2.2 of the Award;

c) $1,400 for breach of clause 16.2.3 of the Award;

d) $700 for breach of clause 16.2.4 of the Award;

e) $350 for breach of clause 16.3.1 of the Award;

f) $350 for breach of clause 19 and Schedule A of the Award;

g) $3,500 for breach of clause 28.1 of the Award (overtime payable for full-time employees for work performed outside ordinary hours);

h) $1,400 for breach of clause 28.2 of the Award ;

i) $700 for breach of clause 29.1.1 of the Award;

j) $700 for breach of clause 29.1.2 of the Award (penalty rates for full-time employees for work performed between midnight Saturday and midnight Sunday);

k) $3,500 for breach of clause 29.2.1 of the Award;

l) $700 for breach of clause 37.7 of the Award; and

m) $700 for breach of s.185 of the Act.

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.