Workplace OMBUDSMAN v Qmgim Pty Ltd - [2010] FMCA 64

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WORKPLACE OMBUDSMAN v QMGIM PTY LTD & ORS

[2010] FMCA 64

INDUSTRIAL LAW – Alleged breaches of Award – Award coverage – whether Award applies to particular employees – calculation of amounts that ought to have been paid.

Workplace Relations Act 1996, ss.718, 719

Re City of Wanneroo v Holmes [1989] FCA 369
Federated Clerks’ Union of Australia, New South Wales Branch v Australian Workers Union (The Purchasing Officers’ Case) [1971] AR (NSW) 419
Re Keogh and Federated Clerks’ Union of Australia; ex parte Linehan (1979) 40 FLR 445
Voigtsberger v Pine Rivers Shire Council (1980) 46 LGRA 367
Joyce v Christoffersen (1990) 26 FCR 261
Kingmill Pty Ltd T/A Thrifty Car Rental v Federated Clerks’ Union of Australia New South Wales Branch [2001] NSW IRComm 141
Hayward v Mitsui OSK Lines (Australia) Pty Ltd [1996] IRCA 471
Wool Selling Brokers Officers’ Association of Australia v The Employers’ Association of Wool Selling Brokers and Ors [1949] 67 CAR 227
Re Andrew John Short v F W Hercus Pty Ltd (1993) 40 FCR 511
Ross Walker v Perpetual Trustees Australia Limited [2004] AIRC 906
Norwest Beef Industries Ltd v Australasian Meat Industry Employees Union (WA Branch) (1984) 12 IR 314
Kucks v CSR Limited (1996) 66 IR 182
Ray v Radino (1967) AR (NSW) 471
Poletti v Ecob (1989) 31 IR 321
Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 415

Applicant:

WORKPLACE OMBUDSMAN

First Respondent:

QUEENSLAND MARINE AND GENERAL INSURANCE MANAGEMENT PTY LTD

Second Respondent:

PETER RALPH MARTINUZZI

Third Respondent:

QUEENSLAND MARINE AND GENERAL INSURANCE BROKERS PTY LTD

File Number:

BRG 147 of 2009

Judgment of:

Wilson FM

Hearing dates:

26, 27 & 28 October 2009

Date of Last Submission:

19 November 2009

Delivered at:

Brisbane

Delivered on:

4 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr Murdoch

Solicitors for the Applicant:

McCullough Robertson

Counsel for the Respondents:

Mr Sumner-Potts

Solicitors for the Respondents:

Myles Thompson

ORDERS

The Court declares that the first respondent breached applicable provisions of the Insurance Industry Award 1998 in that it:
(a)Failed to pay its employee Michael Lee wages of $9,203.45;
(b)Failed to pay its employee Michael Lee accrued long service leave entitlements of $4,475.27;
(c)Failed to pay its employee Michael Lee a tropical allowance of $1,760.54;
(d)Failed to pay its employee David Stone wages of $1,002.93;
(e)Failed to pay its employee David Stone a tropical allowance of $1,892.28.

(1A)The Court declares that the second and third respondents were involved in each contravention of the first respondent.

A penalty hearing is fixed for 10 March 2010 at 10.00am before Federal Magistrate Burnett.
On or before 19 February 2010 at 4.00pm, the applicant:
(a)Shall file and serve any further evidence upon which it intends to rely at the penalty hearing;
(b)Shall identify that part of the evidence already filed upon which it intends to rely at the penalty hearing.
On or before 1 March 2010 at 4.00pm, the respondents:
(a)Shall file and serve any further evidence upon which they…

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: [2010] FMCA 64
Decision Date: 4 February 2010

CaseChat Overview and Summary

In the Federal Court of Australia, Workplace Ombudsman filed a case against Qmgim Pty Ltd and two of its directors, the second and third respondents, alleging breaches of the Insurance Industry Award 1998. The Ombudsman claimed that Qmgim Pty Ltd had failed to pay its employees Michael Lee and David Stone various amounts, including wages, long service leave entitlements, and tropical allowances. The case required the court to determine whether Qmgim Pty Ltd and the respondents had contravened the award by not paying the specified amounts to the employees.

The court had to decide whether the respondents had indeed failed to pay the employees the amounts claimed and, if so, whether the second and third respondents were also involved in these contraventions. The Ombudsman argued that Qmgim Pty Ltd, through its directors, had deliberately or negligently failed to pay the employees the amounts they were owed under the award. The respondents argued that they had taken all reasonable steps to comply with the award and that any failure to pay was due to administrative errors rather than deliberate non-compliance.

The court found that Qmgim Pty Ltd had failed to pay the employees the amounts claimed and that the second and third respondents were involved in these contraventions. The court declared that Qmgim Pty Ltd had breached the award by not paying Michael Lee and David Stone their wages, long service leave entitlements, and tropical allowances. The court also found that the second and third respondents were involved in each contravention of the first respondent. A penalty hearing was fixed for 10 March 2010 to determine the penalties for the contraventions. The court issued several orders, including deadlines for filing further evidence and submissions on penalty, and required the respondents to calculate and respond to the annual leave loading payable to David Stone.

Orders

Orders of the court

The Court declares that the first respondent breached applicable provisions of the Insurance Industry Award 1998 in that it:

(a) Failed to pay its employee Michael Lee wages of $9,203.45;

(b) Failed to pay its employee Michael Lee accrued long service leave entitlements of $4,475.27;

(d) Failed to pay its employee David Stone wages of $1,002.93;

(e) Failed to pay its employee David Stone a tropical allowance of $1,892.28.

(1A) The Court declares that the second and third respondents were involved in each contravention of the first respondent.

A penalty hearing is fixed for 10 March 2010 at 10.00am before Federal Magistrate Burnett.

On or before 19 February 2010 at 4.00pm, the applicant:

(a) Shall file and serve any further evidence upon which it intends to rely at the penalty hearing;

(b) Shall identify that part of the evidence already filed upon which it intends to rely at the penalty hearing.

On or before 1 March 2010 at 4.00pm, the respondents:

(a) Shall file and serve any further evidence upon which they intend to rely at the penalty hearing;

(b) Shall identify that part of the evidence already filed upon which they intend to rely at the penalty hearing.

The applicant shall file and serve written submissions as to penalty by 4.00pm 4 March 2010.

The respondents shall file and serve written submissions as to penalty by 4.00pm 8 March 2010.

The applicant shall on or before 4.00pm 19 February 2010 calculate the annual leave loading payable to David Stone in conformity with these Reasons.

The respondents shall by 4.00pm 1 March 2010 file and serve a document stating whether they accept the applicant’s calculation, and if they do not, the calculation contended for by the respondents.

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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