Fair Work Ombudsman v Contracting Solutions Australia Pty Ltd [2013] FCA 7

Fair Work Ombudsman v Contracting Solutions Australia Pty Ltd [2013] FCA 7

On the admitted facts, the Odco model had been inappropriately applied to school-aged retail food assistants who were not bona fide independent contractors, and the contracts with Ms Langmead and Ms Davis were contracts of employment. LCS contravened s 900 in relation to Ms Davis, and Blue Steel, Mr Wright and Mr Lenkic were involved in contraventions under s 728. The agreed penalties were within the permissible range; given the substantial costs incurred and the manner in which the proceeding had been prosecuted, penalties for LCS and Mr Wright were imposed at the lowest end of the proposed range, while the agreed penalties for Blue Steel and Mr Lenkic were imposed.

Jurisdiction
Australia
Judgment Date
15 January 2013
Procedural Posture
Application by the Fair Work Ombudsman for Declarations, Pecuniary Penalties and Other Relief for Contraventions of the Workplace Relations Act 1996 (cth) Relating to Sham Arrangements / Final Judgment on Admitted Contraventions and Penalties
Outcome
Declarations made, pecuniary penalties imposed, and the proceeding otherwise dismissed.
Legal Topics
['sham Contracting' 'independent Contractor Representation' 'contract of Employment' 'accessorial Liability' 'pecuniary Penalties' 'odco Contracting Model' 'school Aged Workers']
['industrial Law' 'employment Law' 'civil Penalties'] ['sham Contracting' 'independent Contractor Representation' 'contract of Employment' 'accessorial Liability' 'pecuniary Penalties' 'odco Contracting Model' 'school Aged Workers']

Case Brief

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Procedural Posture

Application by the Fair Work Ombudsman for Declarations, Pecuniary Penalties and Other Relief for Contraventions of the Workplace Relations Act 1996 (cth) Relating to Sham Arrangements / Final Judgment on Admitted Contraventions and Penalties

Legal Issues

  1. 1 ['Whether representations that school-aged retail food assistants were independent contractors contravened s 900 of the Workplace Relations Act 1996 (Cth) where the contracts were in fact contracts of employment.' 'Whether Blue Steel Corporation Pty Ltd, Michael Wright and Daryl Lenkic were involved in primary contraventions so as to be liable under s 728 of the Workplace Relations Act 1996 (Cth).' 'Whether relief could be sought against Contracting Solutions Australia Pty Ltd in liquidation without leave under s 471B of the Corporations Act 2001 (Cth).' 'What pecuniary penalties should be imposed for the admitted contraventions.']

Ratio Decidendi

On the admitted facts, the Odco model had been inappropriately applied to school-aged retail food assistants who were not bona fide independent contractors, and the contracts with Ms Langmead and Ms Davis were contracts of employment. LCS contravened s 900 in relation to Ms Davis, and Blue Steel, Mr Wright and Mr Lenkic were involved in contraventions under s 728. The agreed penalties were within the permissible range; given the substantial costs incurred and the manner in which the proceeding had been prosecuted, penalties for LCS and Mr Wright were imposed at the lowest end of the proposed range, while the agreed penalties for Blue Steel and Mr Lenkic were imposed.

Court Disposition

Declarations made, pecuniary penalties imposed, and the proceeding otherwise dismissed.

Orders

  • ['The Second Respondent contravened s 900 of the Workplace Relations Act 1996 (Cth) by representing to Ms Samantha Davis from on or about 24 November 2007 to on or about 7 April 2008 that her contract was a contract for services under which she performed or was to perform work as an independent contractor, when it...