Fair Work Ombudsman v Abulamoun
[2021] FedCFamC2G 318
•23 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Abulamoun [2021] FedCFamC2G 318
File number(s): SYG 261 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 23 November 2021 Catchwords: INDUSTRIAL LAW – Breaches of civil remedy provisions of the Fair Work Act 2009 (Cth) – imposition of pecuniary penalties – relevant considerations. Legislation: Fair Work Act 2009 (Cth), ss.405, 539, 546
Crimes Act 1914 (Cth), s.4AA
Cases cited: Fair Work Ombudsman v Abulamoun [2021] FCCA 2195
Kelly v Fitzpatrick (2007) 166 IR 14
Division: Fair Work Number of paragraphs: 13 Date of hearing: 23 November 2021 Place: Sydney Solicitor for the Applicant: Ms K. Davies, Fair Work Ombudsman Counsel for the Respondent: No appearance by or on behalf of the respondent ORDERS
SYG 261 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: MAHMOUD HASAN ABULAMOUN
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
23 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The respondent pay a pecuniary penalty of $7,560.
2.The penalty be paid to the Commonwealth within 28 days of this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors, or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
The respondent, Mr Abulamoun, was the operator of a trolley collection business at the Green Hills East Maitland Shopping Centre in New South Wales. On 21 May 2020 he terminated the employment of Nathan Jackson, who had worked for him as a trolley collector. Mr Jackson filed an unfair dismissal application in the Fair Work Commission. On 3 August 2020 the Commission ordered that Mr Abulamoun pay Mr Jackson compensation in the amount of $2,817.39 less applicable taxation (“Commission Order”). Mr Abulamoun made an application for permission to appeal that order, which was refused by the Commission on 21 October 2020, at which point a stay on the primary decision ceased and the compensation originally ordered became payable.
Mr Abulamoun did not make payment pursuant to the Commission Order. On 3 August 2021 the Court found that Mr Abulamoun had contravened s.405 of the Fair Work Act 2009 (Cth) (“FW Act”) by contravening the Commission Order and ordered him to pay within 28 days, to the applicant in this proceeding for distribution to Mr Jackson, $2,817.39 less taxation and $141.51 interest: Fair Work Ombudsman v Abulamoun [2021] FCCA 2195. No such payment has been made. The applicant (“Ombudsman”) seeks the imposition of a pecuniary penalty.
RELEVANT LEGISLATION
The FW Act relevantly provides:
546 Pecuniary penalty orders
(1)The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
(2)The pecuniary penalty must not be more than:
(a)if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or
(b)if the person is a body corporate–-5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).
(3)The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a)the Commonwealth; or
(b)a particular organisation; or
(c)a particular person.
Section 539 of the FW Act provides that s.405 is a civil remedy provision and s.539(2) provides that the maximum penalty for a contravention of s.405 of the FW Act is 60 penalty units. At the time of the contravention, being 21 October 2020, a penalty unit was worth $210: s.4AA Crimes Act 1914 (Cth). The maximum penalty that can be imposed on Mr Abulamoun is $12,600.
APPLICANT’S EVIDENCE
In her affidavit of 24 September 2021, Ms Davies, the solicitor with the carriage of the matter for the Ombudsman, annexed an email dated 22 September 2021 from Angela Cao, finance officer for the Ombudsman, confirming that as at that date no payment had been received by the Ombudsman in relation to this proceeding. Ms Davies has informed me today that the amount has still not been paid.
CONSIDERATION
When determining an appropriate penalty to impose, regard should be had to all of the circumstances of the case, guided by the various discretionary considerations discussed in authorities such as Kelly v Fitzpatrick (2007) 166 IR 14, in order to arrive at a single result that is an instinctive synthesis of those various factors.
In this case, the contravention is a single omission, being a failure to comply with an order of the Commission at first instance, which was not disturbed when the respondent unsuccessfully sought permission to appeal. Mr Abulamoun has hardly engaged with this proceeding and failed to appear at the contravention hearing in August and at the hearing on penalty today, notwithstanding that he was given notice of them at his email address for service. In that regard, the Court advised Mr Abulamoun of today’s hearing by email and I note that there was also some email correspondence regarding the date of the hearing passing between Ms Davies and my chambers into which Mr Abulamoun was copied. The respondent has placed nothing before the Court which would explain his absence from those hearings or his failure to file or lead any evidence which would identify circumstances which the Court could take into account in his favour when setting the penalty which must be imposed.
The particular significance of the respondent’s failure to engage with this proceeding is that it manifests a deliberate disregard for his obligations under the FW Act. Specifically, there has been no co-operation with the Ombudsman as regulator or expression of regret, contrition or resolve not to repeat the conduct in the future. In the latter connection, I note that annexed to Ms Davies’s affidavit of 24 September 2020 is a printout concerning Mr Abulamoun’s Australian Business Number which as at 17 September 2021 remained active, suggesting that he is in, or may return to, business.
Mr Abulamoun’s contravention of the Commission Order has also led to this proceeding and the devotion of yet more public resources to deal with his conduct.
I am unaware of the particular circumstances of Mr Jackson, the employee who was dismissed from the respondent’s employment and who made the complaint which was the genesis of this process, other than that he was a trolley collector at a shopping centre in East Maitland. I infer that his wages were low and that being deprived of $2,817.39 less tax was not an insignificant thing for him.
I note that the Commission Order was made and the stay on its operations ceased over a year ago and yet it has not been obeyed. The Commission performs a central role in the maintenance of minimum employment standards and the disregard of its orders has the tendency to reduce the Commission’s effectiveness in the discharge of those functions. The Court’s disapproval of the respondent’s conduct in relation to the Commission Order should be marked by an appropriate penalty. It should be set at a level which would tend to deter Mr Abulamoun and others in his circumstances from repeating the contravening conduct.
The Ombudsman has suggested a penalty in the range $7,560 to $8,820 and, as I have said, the maximum penalty is $12,600. The suggested range is 60 per cent to 70 per cent of the maximum penalty and I accept it in all the circumstances as a reasonable range.
It appears, through want of evidence to the contrary, which presumably the Ombudsman would have led had it existed, that Mr Abulamoun has not contravened the FW Act previously. Accordingly, I will set the penalty at the 60 per cent figure, namely, $7,560. Mr Abulamoun is to pay that penalty to the Commonwealth within 28 days.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Dated: 1 December 2021
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