Enkel v We R Finance Pty Ltd [2020] FCA 1668

Enkel v We R Finance Pty Ltd [2020] FCA 1668

Mr Ross was knowingly concerned in and a party to the company’s contraventions under s 550 because he was aware of and involved in employment arrangements establishing the contraventions. Locum payments were for a specific purpose and could not be set off against Award entitlements. The industrial magistrate erred in grouping multiple contraventions for penalty; separate penalties are required. Costs were not warranted as the defence was not unreasonably maintained.

Parties
Cross Appellant: Alastair Enkel; First Cross Respondent: We R Finance Pty Ltd (ACN 137 850 714); Second Cross Respondent: Harry Charles Ross
Jurisdiction
Australia
Judgment Date
18 November 2020
Procedural Posture
Cross Appeal / Judgment on Appeal From Industrial Magistrates Court
Outcome
Cross-appeal upheld in part; original orders set aside; penalties and quantum remitted for further determination; costs application procedure ordered.
Legal Topics
Modern Award Contravention, Underpayment of Wages, Accessorial Liability, Set Off of Payments, Penalties for Contravention, Award Coverage, Costs in Industrial Proceedings
Industrial Law Employment Law Modern Award Contravention Underpayment of Wages Accessorial Liability Set Off of Payments Penalties for Contravention Award Coverage +1 more

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Parties

Alastair Enkel

Cross Appellant

We R Finance Pty Ltd (ACN 137 850 714)

First Cross Respondent

Harry Charles Ross

Second Cross Respondent

Procedural Posture

Cross Appeal / Judgment on Appeal From Industrial Magistrates Court

Legal Issues

  1. 1 Whether the director (Mr Ross) was involved in contraventions within the meaning of s 550 of the Fair Work Act 2009 (Cth)
  2. 2 Whether 'locum payments' could be set off against Award entitlements
  3. 3 Whether underpayment contraventions should be treated as a single contravention for penalties under s 557 of the Fair Work Act 2009 (Cth)

Ratio Decidendi

Mr Ross was knowingly concerned in and a party to the company’s contraventions under s 550 because he was aware of and involved in employment arrangements establishing the contraventions. Locum payments were for a specific purpose and could not be set off against Award entitlements. The industrial magistrate erred in grouping multiple contraventions for penalty; separate penalties are required. Costs were not warranted as the defence was not unreasonably maintained.

Court Disposition

Cross-appeal upheld in part; original orders set aside; penalties and quantum remitted for further determination; costs application procedure ordered.

Orders

  • The orders of the Western Australian Industrial Magistrates Court made 22 August 2019 are set aside.
  • Parties to file consent orders (or separate minutes) within seven days specifying amounts payable under ss 545(3), 547(2) of the Fair Work Act 2009 (Cth).