Fair Work Ombudsman v Eastern Colour Pty Ltd (No 3) [2016] FCA 186

Fair Work Ombudsman v Eastern Colour Pty Ltd (No 3) [2016] FCA 186

The appropriate total penalty was $60,000 because the first, second and third respondents were substantially coincident and constituted, in effect, one family enterprise, the second and third respondents were empty corporate vessels used for the overtime scheme, the contraventions were better treated as arising from two forms of contravening conduct concerning overtime and penalty rates rather than five wholly separate contraventions, the employees had been repaid but only after investigation and the underpayment was not insignificant, the respondents acted on professional advice but sought to avoid the statutory and NAPSA obligations, and penalties still had to reflect totality and...

Jurisdiction
Australia
Judgment Date
03 March 2016
Procedural Posture
Industrial Law Civil Penalty Proceeding / Assessment of Penalty Following Findings of Contraventions of the Workplace Relations Act 1996 (cth) and Involvement in Those Contraventions
Outcome
Penalties imposed on the respondents in a total amount of $60,000.
Legal Topics
['assessment of Penalty' 'failure to Pay Overtime' 'failure to Pay Penalty Rates' 'minimum Employee Entitlements' 'involvement in Contraventions' 'course of Conduct' 'totality Principle' 'general and Specific Deterrence' 'vulnerable Employees']
['industrial Law' 'employment and Industrial Relations' 'civil Penalties'] ['assessment of Penalty' 'failure to Pay Overtime' 'failure to Pay Penalty Rates' 'minimum Employee Entitlements' 'involvement in Contraventions' 'course of Conduct' 'totality Principle' 'general and Specific Deterrence' 'vulnerable Employees']

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Procedural Posture

Industrial Law Civil Penalty Proceeding / Assessment of Penalty Following Findings of Contraventions of the Workplace Relations Act 1996 (cth) and Involvement in Those Contraventions

Legal Issues

  1. 1 ['What penalties should be imposed on the respondents following contraventions of the Workplace Relations Act 1996 (Cth) and the NAPSA.' 'Whether multiple contraventions should be treated as arising from one or more courses of conduct or schemes.' 'Whether the first, second and third respondents should be treated, in effect, as one entity for penalty purposes.' 'How the totality principle and the need to avoid double punishment should affect the penalty.' 'Whether general and specific deterrence were required.']

Ratio Decidendi

The appropriate total penalty was $60,000 because the first, second and third respondents were substantially coincident and constituted, in effect, one family enterprise, the second and third respondents were empty corporate vessels used for the overtime scheme, the contraventions were better treated as arising from two forms of contravening conduct concerning overtime and penalty rates rather than five wholly separate contraventions, the employees had been repaid but only after investigation and the underpayment was not insignificant, the respondents acted on professional advice but sought to avoid the statutory and NAPSA obligations, and penalties still had to reflect totality and...

Court Disposition

Penalties imposed on the respondents in a total amount of $60,000.

Orders

  • ['The first, second and third respondents pay a total penalty of $50,000 pursuant to s 719(1) of the Workplace Relations Act 1996 (Cth) within thirty days of the date of this order to the Commonwealth Consolidated Revenue Fund.' 'The fourth respondent pay a penalty of $10,000 pursuant to s 719(1) of the Workplace...