Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Mr James and Mr Kouka were not mere trainees but employees of DMG for the relevant periods; DMG is a national system employer and the Award applied to their work on the Bradley. DMG contravened the Award by failing to pay minimum hourly wage and weekend penalty rates. Brett Barry Devine was involved as an accessory in these contraventions, having the requisite knowledge of the employment relationship, the applicable award, and the rates. The notice to produce was too vague and broad, giving DMG a reasonable excuse for non-compliance. Boucaut-Jones was not shown to have the requisite knowledge for accessorial liability.

Jurisdiction
Australia
Judgment Date
12 December 2014
Procedural Posture
Civil / Liability Judgment (remedy/penalty Hearing Pending)
Outcome
Application partly allowed: declarations made against Brett Barry Devine as accessory; all other claims dismissed; penalty hearing to be conducted.
Legal Topics
['contravention of Modern Award' 'employment Status' 'accessory Liability' 'fair Work Act 2009 (cth)' 'minimum Wage' 'penalty Rates' 'notice to Produce Documents']
['industrial Law' 'employment Law'] ['contravention of Modern Award' 'employment Status' 'accessory Liability' 'fair Work Act 2009 (cth)' 'minimum Wage' 'penalty Rates' 'notice to Produce Documents']

Case Brief

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Procedural Posture

Civil / Liability Judgment (remedy/penalty Hearing Pending)

Legal Issues

  1. 1 ['Whether Mr James and Mr Kouka were employees of DMG or participants in a training program' 'Whether DMG contravened the terms of the Manufacturing and Associated Industries and Occupations Award 2010' 'Whether DMG failed to comply with a notice to produce under s 712 of the Fair Work Act 2009 (Cth)' 'Whether Brett Barry Devine and Arthur Boucaut-Jones were liable as accessories under s 550 of the Fair Work Act 2009 (Cth)']

Ratio Decidendi

Mr James and Mr Kouka were not mere trainees but employees of DMG for the relevant periods; DMG is a national system employer and the Award applied to their work on the Bradley. DMG contravened the Award by failing to pay minimum hourly wage and weekend penalty rates. Brett Barry Devine was involved as an accessory in these contraventions, having the requisite knowledge of the employment relationship, the applicable award, and the rates. The notice to produce was too vague and broad, giving DMG a reasonable excuse for non-compliance. Boucaut-Jones was not shown to have the requisite knowledge for accessorial liability.

Court Disposition

Application partly allowed: declarations made against Brett Barry Devine as accessory; all other claims dismissed; penalty hearing to be conducted.

Orders

  • ['Declarations that DMG contravened s 45 of the Fair Work Act by failing to pay minimum hourly rate and weekend penalty rates under the Award;' 'Declaration that Brett Barry Devine was involved as an accessory in said contraventions;' 'All other aspects of the application dismissed;' 'Parties to be heard on...