Federal Court of Australia
Federal Court of Australia
Enkel v We R Finance Pty Ltd [2020] FCA 1668 Appeal from: Enkel v We R Finance Pty Ltd (ACN 137 850 714) [2019] WAIRC 284 Enkel v We R Finance Pty Ltd (ACN 137 850 714) [2019] WAIRC 651
File number: WAD 459 of 2019
Judgment of: JACKSON J
Date of judgment: 18 November 2020
Catchwords: INDUSTRIAL LAW - appeal from Western Australian Industrial Magistrates Court - industrial magistrate found company to be in contravention of modern award - underpayment of statutory award and entitlements - accessorial liability of director - industrial magistrate erred in finding that director was not involved in contraventions - whether director must have intended to commit contravention - finding that director knew about all the elements of the contraventions - director concerned in and a party to contraventions - adverse Jones v Dunkel inference should have been drawn against director - director was involved in company's contraventions - grounds of appeal upheld INDUSTRIAL LAW - consideration of when an employer's payments made under contract to an employee may be 'set off' against its statutory obligations to pay award entitlements the employee - industrial magistrate erred in considering that 'locum payments' could be set off against award entitlements - parties objectively intended that the locum payments were to be paid and received for a specific purpose, over and above award entitlements - ground of appeal upheld INDUSTRIAL LAW - multiple contraventions of modern award involving breaches of separate provisions of the Fair Work Act 2009 (Cth) - civil remedy provisions - industrial magistrate erred in finding that separate contraventions could be treated as one - separate civil penalty must be applied in respect of each contravention - grounds of appeal upheld - matter remitted to allow director to be heard on question of penalty INDUSTRIAL LAW - costs - unreasonable act or omission causing other party to incur costs - claim of meritless defence - finding that conduct of defence did not amount to an unreasonable act causing other party to incur costs - defence arguable - forensic approach open for party to take - ground of appeal dismissed
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