Complete Windscreens (SA) Pty Ltd v Fair Work Ombudsman (No 2) [2017] FCAFC 212

Complete Windscreens (SA) Pty Ltd v Fair Work Ombudsman (No 2) [2017] FCAFC 212

The appeal was dismissed because Complete Windscreens did not demonstrate appealable error in the primary judge's findings. The GPS and day book evidence did not prove that employees were off duty during alleged breaks, did not establish that the sample period was representative, and did not displace the Fair Work Ombudsman's evidence based on company records, employee evidence and admissions. The findings about Mr Flynn's hourly rate were supported by payroll and payment evidence. The primary judge correctly approached employee classification under the applicable industrial instruments, including by treating unsupervised windscreen fitting work as supporting the adult classification and...

Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Appeal in Employment and Industrial Relations Proceedings Concerning Contraventions of the Fair Work Act 2009 (cth) and Workplace Relations Act 1996 (cth) / Appeal From Fair Work Ombudsman V Complete Windscreens (sa) Pty Ltd [2016] FCA 621 and Fair Work Ombudsman V Complete Windscreens (sa) Pty Ltd (no 2) [2016] FCA 1563
Outcome
Appeal dismissed.
Legal Topics
['employee Underpayments' 'unpaid Breaks and on Call Time' 'civil Penalties and Compensation' 'employee Classification Under Industrial Instruments' 'appellate Review of Findings of Fact' 'representative Sample Evidence']
['employment and Industrial Relations' 'appeal and New Trial'] ['employee Underpayments' 'unpaid Breaks and on Call Time' 'civil Penalties and Compensation' 'employee Classification Under Industrial Instruments' 'appellate Review of Findings of Fact' 'representative Sample Evidence']

Case Brief

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Procedural Posture

Appeal in Employment and Industrial Relations Proceedings Concerning Contraventions of the Fair Work Act 2009 (cth) and Workplace Relations Act 1996 (cth) / Appeal From Fair Work Ombudsman V Complete Windscreens (sa) Pty Ltd [2016] FCA 621 and Fair Work Ombudsman V Complete Windscreens (sa) Pty Ltd (no 2) [2016] FCA 1563

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that employees were not paid for 30 minutes of work each day because they were paid as if they had a one hour meal break but were only found to have taken a 30 minute lunch break.' 'Whether GPS records and day book records established late starts, early finishes or additional unpaid breaks so as to disprove or reduce the underpayment findings.' 'Whether the primary judge erred in finding that Mr Flynn was paid at an hourly rate below his minimum entitlements.' 'Whether the primary judge erred in classifying employees, including adult employee Mr Priest and junior employees, by reference to the applicable industrial instruments after the first month of employment.']

Ratio Decidendi

The appeal was dismissed because Complete Windscreens did not demonstrate appealable error in the primary judge's findings. The GPS and day book evidence did not prove that employees were off duty during alleged breaks, did not establish that the sample period was representative, and did not displace the Fair Work Ombudsman's evidence based on company records, employee evidence and admissions. The findings about Mr Flynn's hourly rate were supported by payroll and payment evidence. The primary judge correctly approached employee classification under the applicable industrial instruments, including by treating unsupervised windscreen fitting work as supporting the adult classification and...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.']