Inspector Darren Lang v ACN 078 899 591 Pty Ltd t/as Kohinoor Indian Centre [2009] FCA 987

FEDERAL COURT OF AUSTRALIA

Inspector Darren Lang v ACN 078 899 591 Pty Ltd t/as Kohinoor Indian Centre [2009] FCA 987

INSPECTOR DARREN LANG v ACN 078 899 591 PTY LTD T/AS KOHINOOR INDIAN CENTRE, MR GUNASENA ATHUGALAGE and MRS THILAKA ATHUGALAGE

ACD 16 of 2008

PERRAM J

4 SEPTEMBER 2009

CANBERRA IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

fair work division ACD 16 of 2008

BETWEEN: INSPECTOR DARREN LANG

Applicant

AND: ACN 078 899 591 PTY LTD T/AS KOHINOOR INDIAN CENTRE

First Respondent

MR GUNASENA ATHUGALAGE

Second Respondent

MRS THILAKA ATHUGALAGE

Third Respondent

JUDGE: PERRAM J

DATE OF ORDER: 4 SEPTEMBER 2009

WHERE MADE: CANBERRA

THE COURT ORDERS THAT:

1. The applicant is to pay the costs of the second and third respondents. 2. The applicant is to pay the costs of the first respondent insofar as it relates to claims for compensation arising prior to 4 June 2002. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION ACD 16 of 2008

BETWEEN: INSPECTOR DARREN LANG

Applicant

AND: ACN 078 899 591 PTY LTD T/AS KOHINOOR INDIAN CENTRE

First Respondent

MR GUNASENA ATHUGALAGE

Second Respondent

MRS THILAKA ATHUGALAGE

Third Respondent

JUDGE: PERRAM J

DATE: 4 SEPTEMBER 2009

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 Mr Premachandra was employed by the respondent as a chef at the Blue Elephant Restaurant which is located at Braddon in the Australian Capital Territory. There were disagreements between Mr Premachandra and his employer about the way in which he was treated and the amount which he was paid. He left the Blue Elephant in early 2003. He had commenced his employment there in November 2000 so that in all the employment relationship lasted a little over two years. 2 The applicant is a workplace inspector presently holding office under the provisions of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). At the times relevant to this litigation he held office under the then provisions of the Workplace Relations Act 1996 (Cth) ("the 1996 Act"). On 5 June 2008 the inspector commenced the present proceedings against Mr Premachandra's employer contending, amongst other things, that the employer had not paid him the correct wage and that he had not paid him overtime which he was due. Other allegations, too, were made. The inspector sought the imposition of a penalty and the payment to Mr Premachandra of his unpaid entitlements. 3 The case was listed for hearing before me on 7 and 8 July 2009. During the course of the first day the parties reached an accommodation and, at that time, I made orders giving it effect. I made the following three declarations: 1. The First Respondent has breached clause 19 of the Liquor and Allied Industries Catering, Café, Restaurant, Etc. (Australian Capital Territory) Award 1998 (Award) in respect of payments owed to its former employee Mr Lalith Premachandra (Mr Premachandra) in that the First Respondent did not pay Mr Premachandra pursuant to the classification "Level 3 Hospitality Service". 2. The First Respondent has breached clause 28.1 of the Award in respect of payments owed to Mr Premachandra. 3. The First Respondent has breached clause 28.2 of the Award in respect of payments owed to Mr Premachandra. I also made an order that: 4. The First Respondent pay a penalty of $3,200 and pay $16,800 to Mr Premachandra pursuant to s 178(6) of the pre-reform version of the Workplace Relations Act 1996. 4 There remained between the parties two issues about costs which were then argued before me. These reasons deal with those issues, the reasons why it was appropriate to accede to the parties' agreed orders and the effect on the proceedings of the commencement on 1 July 2009 of the Fair Work Act. It is convenient to deal with that last matter first.