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Workplace Ombudsman v Saya Cleaning Pty Ltd

Workplace Ombudsman v Saya Cleaning Pty Ltd

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Case Copied 29 January 2009 34 min read

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

WORKPLACE OMBUDSMAN v SAYA CLEANING PTY LTD & ANOR

[2009] FMCA 38

INDUSTRIAL LAW – Penalty hearing – undefended – no wages or superannuation paid – 2 employees – deliberate conduct – previous contraventions – breaches of s.182(1) and 185(2) of the Workplace Relations Act 1996 (Cth) and clauses of NAPSA – penalty determined.

Workplace Relations Act 1996 (Cth), ss.3, 4(1), 182(1), 185(2), 714(4)(a), 718(1), 719(2), 728 and 841(a)
Crimes Act 1914 (Cth) s.4AA

Attorney General v Tichy (1992) SASR 84
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Limited (No 4) [2006] ATPR 42-101
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Carr v CEPU and Anor [2007] FMCA 1526
Cotis v MacPherson [2007] FMCA 2060
Cotis v Pow Juice Pty Ltd [2007] FMCA 140
CPSU v Telstra Corporation Limited (2001) 108 IR 228
Fryer v Yoga Tandoori House Pty Limited [2008] FMCA 288
Johnson v R [2004] HCA 15
Jones v Hanssen Pty Ltd [2008] FMC 291
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Lynch v Buckley Sawmills Pty Ltd (1984) 3 FCR 503
Markarian v The Queen (2005) 228 CLR 357
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7
McIver v Healey [2008] FCA 425
Mill v R [1988] HCA 70
PKIU and Others v Vista Paper Products Pty Ltd and Another (1994) 127 ALR 673
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
R v Rossi (1988) 142 LSJS 451
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Wong v The Queen (2001) 207 CLR 584

Principles of Sentencing, 2^nd Ed (1979)

Applicant:

WORKPLACE OMBUDSMAN

First Respondent:

SAYA CLEANING PTY LTD

Second Respondent:

YOUSEF JELIL

File Number:

ADG 289 of 2007

Judgment of:

Simpson FM

Hearing dates:

14 April 2008, 13 May 2008

Date of Last Submission:

13 May 2008

Delivered at:

Adelaide

Delivered on:

29 January 2009

REPRESENTATION

Counsel for the Applicant:

Mr SJ Dowd

Solicitors for the Applicant:

Piper Alderman

Counsel for the Respondent:

No appearance by or behalf of the respondent

ORDERS

In relation to the first respondent:
(a)A penalty of $15,000 for contravention of s.182(1) of the Act in relation to the Ms Keny Iglesias;
(b)A penalty of $15,000 for contravention of s.185(2) of the Act in relation to Ms Keny Iglesias;
(c)A penalty of $15,000 for contravention of clause 6.4 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Ms Keny Iglesias.
(d)A penalty of $15,000 for contravention of clause 6.6.1 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Ms Keny Iglesias.
(e)A penalty of $15,000 for contravention of clause 5.9 of the Notional Agreement Preserving State Awards derived from…

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 38
Decision Date: 29 January 2009

CaseChat Overview and Summary

The Workplace Ombudsman took action against Saya Cleaning Pty Ltd and another respondent in the Federal Circuit Court, alleging breaches of the Fair Work Act 2009 and an associated award. The issues before the court were whether the respondents had contravened specific sections of the Act and associated award terms, and if so, what penalties should be imposed. The respondents were accused of underpaying two employees, Ms Keny Iglesias and Mr Helal Elbehidi, by not complying with the award's minimum rates and conditions.

The court found that the respondents had indeed contravened the provisions of the Act and the award. It noted that the respondents' actions were deliberate, and the underpayments were substantial and repeated. The court determined that the penalties should reflect the seriousness of the breaches, taking into account the respondents' financial capacity and the need to deter future breaches. The penalties imposed varied depending on the severity and frequency of the breaches and the size of the respondents' business.

Orders

Orders of the court

In relation to the first respondent:

(a) A penalty of $15,000 for contravention of s.182(1) of the Act in relation to the Ms Keny Iglesias;

(b) A penalty of $15,000 for contravention of s.185(2) of the Act in relation to Ms Keny Iglesias;

(c) A penalty of $15,000 for contravention of clause 6.4 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Ms Keny Iglesias.

(d) A penalty of $15,000 for contravention of clause 6.6.1 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Ms Keny Iglesias.

(e) A penalty of $15,000 for contravention of clause 5.9 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Ms Keny Iglesias.

(f) A penalty of $15,000 for contravention of clause 6.1.1 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Ms Keny Iglesias.

(g) A penalty of $25,000 for contravention of s.182(1) of the Act in relation to the Mr Helal Elbehidi;

(h) A penalty of $25,000 for contravention of s.185(2) of the Act in relation to Mr Helal Elbehidi;

(i) A penalty of $25,000 for contravention of clause 6.4 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Mr Helal Elbehidi.

(j) A penalty of $25,000 for contravention of clause 6.6.1 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Mr Helal Elbehidi.

(k) A penalty of $25,000 for contravention of clause 5.9 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Mr Helal Elbehidi.

(l) A penalty of $25,000 for contravention of clause 6.1.1 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Mr Helal Elbehidi.

In relation to the second respondent:

(a) A penalty of $3,000 for contravention of s.182(1) of the Act in relation to the Ms Keny Iglesias;

(b) A penalty of $3,000 for contravention of s.185(2) of the Act in relation to Ms Keny Iglesias;

(c) A penalty of $3,000 for contravention of clause 6.4 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Ms Keny Iglesias.

(d) A penalty of $3,000 for contravention of clause 6.6.1 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Ms Keny Iglesias.

(e) A penalty of $3,000 for contravention of clause 5.9 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Ms Keny Iglesias.

(f) A penalty of $3,000 for contravention of clause 6.1.1 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Ms Keny Iglesias.

(g) A penalty of $5,000 for contravention of s.182(1) of the Act in relation to the Mr Helal Elbehidi;

(h) A penalty of $5,000 for contravention of s.185(2) of the Act in relation to Mr Helal Elbehidi;

(i) A penalty of $5,000 for contravention of clause 6.4 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Mr Helal Elbehidi.

(j) A penalty of $5,000 for contravention of clause 6.6.1 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Mr Helal Elbehidi.

(k) A penalty of $5,000 for contravention of clause 5.9 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Mr Helal Elbehidi.

(l) A penalty of $5,000 for contravention of clause 6.1.1 of the Notional Agreement Preserving State Awards derived from the Caretakers and Cleaners Award of the Industrial Relations Commission of South Australia in relation to Mr Helal Elbehidi.

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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