Fair Work Ombudsman v Hu

• Jurisdiction: Australia Federal only
• Judgment Date: 16 August 2019
• Neutral Citation: [2019] FCAFC 133
• Date: 16 August 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Hu [2019] FCAFC 133

Appeal from:	Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034
File number:	QUD 530 of 2018
Judges:	FLICK, REEVES AND BROMBERG JJ
Date of judgment:	16 August 2019
Catchwords:	INDUSTRIAL LAW – accessorial liability – knowingly involved in – Second and Third Respondents not knowingly involved in contraventions of s 45 Fair Work Act 2009 (Cth) ; PRACTICE AND PROCEDURE – appeal in the nature of a re-hearing – departure from findings of fact made by primary Judge
Legislation:	Fair Work Act 2009 (Cth) ss 45 - 49, 134, 138, 550, Workplace Relations Act 1996 (Cth) ss 45, 576A, Pt 10A ; Horticulture Award 2010 cll 10, 14, 15, 16, 22, 23, 24, 28, Schs A, C, D
Cases cited:	Australian Securities and Investments Commission v Hellicar [2012] HCA 17, (2012) 247 CLR 345 Blatch v Archer (1774) 1 Cowp 63, (1774) 98 ER 969 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, (2001) 117 FCR 424 Commissioner of Taxation v Amway of Australia Ltd [2004] FCAFC 273, (2004) 141 FCR 40 Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (1981) 147 CLR 297 Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134, (2018) 282 IR 86 Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034 Jones v Dunkel (1959) 101 CLR 298 Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 Marku v Minister for Justice [2015] FCA 831, (2015) 237 FCR 580 National Retail Association v Fair Work Commission and Another (2014) 225 FCR 154 Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2 The Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20 United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408, (2011) 198 FCR 514 ; Award Modernisation – Decision [2009] AIRCFB 345 Decision [2009] AIRCFB 966
Date of hearing:	26 and 27 February 2019
Date of last submissions:	14 March 2019
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	112
Counsel for the Appellant:	Mr J Bourke QC with Mr AJ Coulthard
Solicitor for the Appellant:	Fair Work Ombudsman
Counsel for the First Respondent:	The First Respondent did not appear
Counsel for the Second and Third Respondents:	Mr P Tucker with Mr D King
Solicitor for the Second and Third Respondents:	Hopgood Ganim Lawyers
Counsel for the Intervener:	Mr R Dalton SC with Mr A Denton
Solicitor for the Intervener:	Seyfarth Shaw Australia

ORDERS

		QUD 530 of 2018
BETWEEN:	FAIR WORK OMBUDSMAN Appellant
AND:	TAO HU First Respondent ; MARLAND MUSHROOMS QLD PTY LTD Second Respondent ; TROY MARLAND Third Respondent ; NATIONAL FARMERS’ FEDERATION LIMITED Intervener

JUDGES:	FLICK, REEVES AND BROMBERG JJ
DATE OF ORDER:	16 AUGUST 2019

THE COURT ORDERS THAT:

1. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK AND REEVES JJ:

1. Marland Mushrooms Qld Pty Ltd (“Marland Mushrooms”) operates a mushroom farm at Stapylton in Queensland. Mr Troy Marland is the sole director and shareholder of Marland Mushrooms. Mr David McKeon was the manager of Marland Mushrooms. Marland Mushrooms and Mr Marland will be collectively referred to as the Marland parties.

2. In November 2013, Marland Mushrooms entered into an agreement with HRS Country Pty Ltd (“HRS Country”). HRS Country was to provide labour to pick mushrooms and to undertake other tasks at the farm. Ms Tao Hu was the sole director of HRS Country.

3. Of present relevance are the persons employed by HRS Country who picked mushrooms during the period from 7 February to 31 August 2014 (the “relevant period”). One hundred and fourteen employees were engaged pursuant to an oral contract; 215 employees signed written agreements. Pursuant to cl 15 of the Horticulture Award 2010 (the “Award”) a “casual employee” who entered into a piecework agreement was to be paid at a “piecework rate … [tha]t enable[d] the average competent employee to earn at least 15% more per hour than the minimum hourly rate prescribed in this award…”.

4. In 2016, the Fair Work Ombudsman commenced a proceeding in this Court. In very summary form, the case was (inter alia) that the workers employed by HRS Country were “casual employees” who had entered into a piecework agreement and who were not paid in accordance with cl 15.2 of the Award.

5. The Fair Work Ombudsman claimed that there had been contraventions of s 45 of the Fair Work Act 2009 (Cth) (the “Fair Work Act”) by HRS Country and that Ms Hu, Marland Mushrooms and Mr Marland were knowingly involved in those contraventions. It should be noted that in July 2017, the National Farmers’ Federation was granted leave to intervene in the proceeding before the primary Judge.

6. In July 2018, the primary Judge dismissed the proceeding against the Second and Third Respondents, namely the Marland parties: Fair Work Ombudsman v Hu (No 2) [2018] FCA 1034. The primary Judge concluded (at paras [133] to [135]) that HRS Country had contravened cl 15.2 by entering into 329 piecework agreements which fixed an inadequate piecework rate. However, the primary Judge further concluded that Mr Marland and Marland Mushrooms were not “knowingly involved” in the contraventions of HRS Country (at para [272]). Ms Hu admitted the contraventions alleged against her. Ms Hu therefore requested, and was granted, leave not to attend the hearing of this appeal.

7. It is that conclusion of the primary Judge, with respect to the Marland parties, which is the subject matter of central relevance to the present appeal. The conclusion that the Marland parties were not “knowingly involved” is said by the Fair Work Ombudsman to involve appellable error. That contention involves a submission that the primary Judge erred when making findings of fact.

8. The arguments on appeal, it should be noted at the outset, sought to trespass well beyond the case as pleaded and as advanced before the primary Judge.

9. The Notice of Appeal, moreover, was a somewhat discursive document which set forth 14 Grounds of Appeal. The issues to be resolved, however, were more helpfully summarised in the Outline of Submissions filed by the Fair Work Ombudsman in the present proceeding, the four issues sought to be canvassed on appeal (albeit not in the order set out in those submissions) centre upon:

• whether an employer who enters into an agreement providing for the payment of an inadequate piecework rate contravenes cl 15 only at that point of time when an agreement is entered into or whether there are continuing contraventions of cl 15;

• whether an...