Workplace Ombudsman v KSN Engineering Pty Ltd - [2009] FMCA 538

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WORKPLACE OMBUDSMAN v KSN ENGINEERING PTY LTD

[2009] FMCA 538

INDUSTRIAL LAW – Penalty – contravention of civil penalty provision – agreed facts – agreed penalty – consideration of factors relevant to penalty where penalty agreed.

INDUSTRIAL LAW – Penalty – whether size and financial resources and capacity to pay are factors relevant to determination of quantum of penalty.

Fair Work Act 2009 (Cth)

Workplace Relations Act 1996 (Cth), ss.182, 719

Carr v CEPU & Anor [2007] FMCA 1526
CFMEU v Austral Bricks (Qld) Pty Ltd (2009) 178 IR 470; [2009] FMCA 143
Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847
Hanssen Pty Ltd v Jones (2009) 179 IR 57; [2009] FCA 192
Jones v Hanssen Pty Ltd [2008] FMCA 291
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Lawlor v Personal Hire Pty Ltd (2009) 179 IR 91; [2009] FMCA 228
Mason v Harrington Corporation [2007] FMCA 7
Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337; [2008] FMCA 1392
Workplace Ombudsman v Saya Cleaning Pty Ltd [2009] FMCA 38

Applicant:

WORKPLACE OMBUDSMAN

Respondent:

KSN ENGINEERING PTY LTD

File Number:

PEG 76 of 2009

Judgment of:

Lucev FM

Hearing date:

On the papers

Date of Last Submission:

2 June 2009

Delivered at:

Perth

Delivered on:

16 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr T Davies

Solicitors for the Applicant:

Blake Dawson

Counsel for the Respondent:

Mr S Billing

Solicitors for the Respondent:

DLA Phillips Fox

DECLARATIONS AND ORDERS

DECLARATIONS

The respondent contravened s.182 of the Workplace Relations Act 1996 (Cth) by failing to pay Myeong Bae Choi weekly or fortnightly for ordinary hours of work for the weeks ending:
(a)16 July 2006;
(b)23 July 2006;
(c)30 July 2006;
(d)6 August 2006; and
(e)13 August 2006,
with total underpayments amounting to $3332.98 (gross) or $2797.98 (net).
The respondent contravened s.182 of the Workplace Relations Act 1996 (Cth) by failing to pay Eung Dae Lee weekly or fortnightly for ordinary hours of work for the weeks ending:
(a)2 April 2006; and
(b)9 April 2006,
with total underpayments amounting to $833.25 (gross) or $729.25 (net).
The respondent contravened s.182 of the Workplace Relations Act 1996 (Cth) by failing to pay Gyeong Yeong Choe weekly or fortnightly for ordinary hours of work for the weeks ending:
(a)28 April 2006;
(b)5 May 2006;
(c)12 May 2006; and
(d)19 May 2006,
with total underpayments amounting to $1932.22 (gross) or $1680.22 (net).

ORDERS

A penalty of $10,000 be imposed on the respondent in respect of the above contraventions pursuant to s.719 of the Workplace Relations Act 1996 (Cth).
The respondent pay the penalty to the Commonwealth of Australia within 14 days of judgment.
The funds held in escrow be released for the purposes of paying the penalty.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 76 of 2009

WORKPLACE OMBUDSMAN

Applicant

And

KSN ENGINEERING PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under…

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: [2009] FMCA 538
Decision Date: 16 June 2009

CaseChat Overview and Summary

The Workplace Ombudsman brought proceedings against KSN Engineering Pty Ltd for contravention of civil penalty provisions under the Workplace Relations Act 1996. The dispute centred on the imposition of a penalty for breaches of workplace laws, with both parties agreeing on the facts and the appropriate penalty. The Federal Circuit Court was tasked with determining the quantum of the penalty despite the agreed penalty amount.

The primary legal issue was whether the size, financial resources, and capacity to pay of the respondent were relevant factors in determining the penalty, despite the parties agreeing on the penalty amount. The court had to consider whether these factors could still play a role in the penalty determination. The court also needed to ensure that the penalty was just and appropriate under the circumstances, despite the agreement on the penalty amount.

In its reasoning, the court held that while the parties had agreed on the penalty amount, the court was still required to consider relevant factors such as the size, financial resources, and capacity to pay of the respondent. The court found these factors pertinent to ensuring the penalty was proportionate and served the purpose of deterrence and compliance. The agreed penalty amount was deemed appropriate after considering these factors, and the court imposed the penalty as agreed. The court also ordered the respondent to pay the penalty within 14 days and directed the release of funds held in escrow for this purpose.

Orders

Orders of the court

A penalty of $10,000 be imposed on the respondent in respect of the above contraventions pursuant to s.719 of the Workplace Relations Act 1996 (Cth).

The respondent pay the penalty to the Commonwealth of Australia within 14 days of judgment.

The funds held in escrow be released for the purposes of paying the penalty.

Background

Background to the litigation

Full text does not contain this section.

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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