FEDERAL COURT OF AUSTRALIA
Wells v Fair Work Ombudsman [2013] FCAFC 47
Citation: Wells v Fair Work Ombudsman [2013] FCAFC 47 Appeal from: Fair Work Ombudsman v Maclean Bay Pty Ltd [2012] FCA 10
Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557Parties: WENDY ANN WELLS v FAIR WORK OMBUDSMAN File number: TAD 20 of 2012 Judges: NORTH, COWDROY AND MCKERRACHER JJ Date of judgment: 30 April 2013 Legislation: Workplace Relations Act 1996 (Cth), ss 901, 902 Date of hearing: 30 April 2013 Place: Melbourne Division: FAIR WORK DIVISION Category: No catchwords Number of paragraphs: 22 Counsel for the Appellants: Mr F Parry SC with Mr R O'Neill Solicitor for the Appellants: Colwell Wright Solicitors Counsel for the Respondent: Mr S Moore Solicitor for the Respondent: Corrs Chambers Westgarth
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
FAIR WORK DIVISION
TAD 20 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: WENDY ANN WELLS
Second AppellantAND: FAIR WORK OMBUDSMAN
Respondent
JUDGES:
NORTH, COWDROY AND MCKERRACHER JJ
DATE OF ORDER:
30 APRIL 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.In the Declarations and Orders of Marshall J dated 31 May 2012:
a.Declarations 2 and 7 be set aside; and
b.Order 2 be varied to substitute the sum of $4,620 for $13,860.
3.There be no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
FAIR WORK DIVISION
TAD 20 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: WENDY ANN WELLS
Second AppellantAND: FAIR WORK OMBUDSMAN
Respondent
JUDGES:
NORTH, COWDROY AND MCKERRACHER JJ
DATE:
30 APRIL 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Wendy Ann Wells, the appellant, appeals against declarations and orders made by the primary judge that she was involved in:
(a)a contravention of s 902(1) of the Workplace Relations Act1996 (Cth) (the Act) in relation to the dismissal of Mrs Sharon Williams;
(b)a contravention of s 902(1) of the Act in relation to the dismissal of Mr Jeffrey Golding; and
(c)a contravention of s 901(1) of the Act in relation to the offer of a contract to Mrs Sharon Williams.
The appellant also challenged the amount of the penalties imposed for the contraventions. The primary judge imposed penalties of $4,620 in respect of each contravention, a total of $13,860.
Section 902(1) of the Act provides:
(1)An employer contravenes this subsection if:
(a)the employer dismisses, or threatens to dismiss, an individual who:
(i)is an employee of the employer; and
(ii)performs particular work for the employer; and
(b)the employer’s sole or dominant purpose in dismissing or threatening to dismiss the individual is to engage the individual as an independent contractor to perform the same work, or substantially the same work, under a contract for services.
(2) Sub-section (1) is a civil remedy provision.
(Emphasis added).Section 901(1) of the Act provides:
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- Case
- [2013] FCAFC 47
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the Fair Work Ombudsman's interpretation of the relevant award clause was correct and whether the penalties imposed on Mr. Wells were appropriate. Specifically, the court had to consider whether the Fair Work Ombudsman had correctly applied the relevant provisions of the Fair Work Act 2009 and if the penalties were proportionate to the breaches found. The court also needed to determine the correct amount of penalties and whether the lower court had erred in its calculation.
The court found that while the Fair Work Ombudsman was correct in interpreting the award clause, the penalties imposed were excessive. The Full Bench of the Federal Court held that the penalties should reflect the seriousness of the breaches but also consider the context and the individual circumstances of the appellant. The court was of the opinion that the penalties imposed were disproportionate given the nature and extent of the breaches. Consequently, the court varied the penalties to a more appropriate sum. The court also noted that the lower court had erred in its calculation of the penalties, leading to the need for a recalibration of the amount owed.
The court's orders included allowing the appeal in part, setting aside certain declarations, and varying the penalty amount. The court did not make any order as to costs, leaving the parties to bear their own costs of the appeal. These findings and orders were made under the authority granted by Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The appeal be allowed in part.
2. In the Declarations and Orders of Marshall J dated 31 May 2012:
a. Declarations 2 and 7 be set aside; and
b. Order 2 be varied to substitute the sum of $4,620 for $13,860.
3. 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
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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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