FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Crawford v Geocore Pty Ltd (No 2) [2024] FedCFamC2G 656
ORDERS
MLG 1412 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ELIZABETH CRAWFORD
Applicant
AND: GEOCORE PTY LTD
First Respondent
AMANDA BROWN
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
7 AUGUST 2024
THE COURT ORDERS THAT:
1.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) (FW Act) the First Respondent pay a pecuniary penalty of $75,000 for its contraventions…
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- Case
- [2024] FedCFamC2G 656
- Decision Date
CaseChat Overview and Summary
The court examined the nature and extent of the contraventions, noting that the respondents’ conduct appeared deliberate and recklessly indifferent. The court acknowledged the importance of deterrence and the need to protect the applicant’s ability to enforce the minimum standards of employment. However, the court also had to ensure that the penalties imposed were not crushing or oppressive. Given that there was no evidence regarding the financial circumstances of the respondents, the court had to exercise caution in determining the appropriate level of penalty. The court found that while the penalties sought by the applicant were not excessive, the total penalties, when combined with those in a previous case, Rybinski (No 2), might indeed be crushing or oppressive. The court concluded that the penalties should be reduced to ensure they were proportionate and not oppressive.
The court ordered that Geocore Pty Ltd pay a penalty of $120,000 and Ms Brown pay a penalty of $21,000, which represented a significant reduction from the penalties initially sought by the applicant. Additionally, the court determined that the applicant was entitled to costs on the scale, but not to indemnity costs, as the respondents had not engaged in any proceedings and had not displayed any remorse or contrition for their actions. The court’s decision underscored the need to balance the objectives of deterrence and protection of employment standards with the necessity of ensuring that penalties are fair and proportionate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
There is no direct evidence before the Court regarding the size of the business, but I accept that Geocore is relatively small in size.Corrective action and cooperation As mentioned above, Geocore and Ms Brown have failed to engage in proceedings and have not taken any steps to correct the contraventions. They have not displayed any remorse or contrition for their actions.Compliance with minimum standards The purpose of the FW Act is to provide a guaranteed set of fair, relevant and enforceable terms and conditions of employment and protect the applicant’s ability to enforce these standards. Ms Crawford contends that the respondents’ failure to comply with the FWC order goes against the basic concept of the rule of law[15], and the respondents should be penalised appropriately. The payment in lieu of notice contravention also goes against “longstanding minimum standards”[16]. [15] Fair Work Ombudsman v Raimondi Investments Pty Ltd [2016] FCCA 1398 at [29][16] Fair Work Bill 2008 Explanatory Memorandum at [469]Conclusion on penalty The applicant seeks penalties in the range of $181,500 to $214,500 for the first respondent and $36,300 to $42,900 for the second respondent for contravening ss 44, 340 and 527. This amounts to an overall penalty of 55-65% of the maximum available penalties. In determining the penalties to be ordered against Geocore, this Court must have regard to the totality of the contravening conduct to ensure that any penalty ordered is not crushing or oppressive[17].[17] Pattinson at [110] The applicant submits that the proposed penalty is appropriate in circumstances were there is no evidence before the Court as to the respondents’ financial capacity, and therefore no way of assessing what might be crushing or oppressive to the respondents. Objectively, the contraventions are serious and the conduct of the respondents appears calculated and intended to deny the applicant the entitlement of her appointment. The attempt to unilaterally change the character of Ms Crawford’s employment from full-time to casual is particularly egregious as is the respondents failure to comply with orders of the Fair Work Commission. The conduct is deserving of a significant penalty to achieve the objective of deterrence. I agree with the applicant that the contraventions do not arise out of a single course of action and are not readily grouped. That does expose the respondents to a very high maximum. However, as I explained in Rybinski (No 2), I consider the penalties sought by the applicant to be excessive. While not excusing its conduct, the first respondent is a small business and it has no prior history of having contravened the FW Act. There is no evidence before the court regarding the financial circumstances of either of the respondents and therefore there is no way of knowing what level of penalty might be crushing or oppressive. Nonetheless the penalties sought by the applicant in this case (which amount to nearly $250,000), coupled with the penalty in Rybinski (No 2), may well cross that threshold.