FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Agile Group (Global) Pty Ltd [2025] FedCFamC2G 46
ORDERS
ADG 227 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: AGILE GROUP (GLOBAL) PTY LTD (ACN 613 992 831 )
First Respondent
JUSTIN BENJAMIN JAMES BRINKIES
Second Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
22 JANUARY 2025
THE COURT DECLARES THAT:
1.The First Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) (“the Act”) by failing to comply with a Compliance Notice issued on 3 February 2023 (the First Respondent's Contravention); and
2.The Second Respondent was involved in (within the meaning of section 550(2) of the Act) the First Respondent's Contravention and therefore himself contravened section 716(5) of the Act being a civil penalty provision under the Act.
THE COURT ORDERS THAT:
3.Pursuant to…
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Details
- Case
- [2025] FedCFamC2G 46
- Decision Date
CaseChat Overview and Summary
Fair Work Ombudsman v Agile Group (Global) Pty Ltd involved the Fair Work Ombudsman (FWO) taking action against Agile Group (Global) Pty Ltd, a company providing security services, for its failure to comply with a Compliance Notice issued by the FWO. The case proceeded undefended, with Agile Group having been placed into liquidation in February 2024. The central issues before the court included whether liability could be established against Mr. Brinkies on an undefended basis, whether he could be held accessorially liable for the employer’s failure to comply with the statutory notice, and the appropriate quantum of penalty to be imposed on Mr. Brinkies if found liable.
The court examined the need for compliance notices to be taken seriously by employers, emphasizing the importance of managing businesses to ensure quick and inexpensive rectification of any errors, particularly in wage defaults. The court also considered the necessity for strong deterrence given the significant level of wage default and the near-complete failure of the compliance notice regime to achieve meaningful rectification. The maximum penalty available for the relevant offence was $8,250.00, and the FWO argued for a penalty in the higher range of 70-80% of this figure. Ms. Scanlon submitted that no discount should be allowed due to Mr. Brinkies' lack of previous industrial regulatory offences, which the court accepted. Despite Mr. Brinkies’ personal financial struggles and status as a single parent, the court determined that these circumstances did not mitigate the penalty given the regulatory nature of the offence and the need for deterrence.
In conclusion, the court found that a penalty of $6,600.00 was appropriate, taking into account the seriousness of the offence and the necessity for both general and personal deterrence. The court declared that Agile Group contravened the applicable provision of the Fair Work Act and that Mr. Brinkies had accessorial liability for the breach. The penalty was deemed payable to the Commonwealth. The court’s final orders reflected these findings, including the declarations sought by the FWO.
The court examined the need for compliance notices to be taken seriously by employers, emphasizing the importance of managing businesses to ensure quick and inexpensive rectification of any errors, particularly in wage defaults. The court also considered the necessity for strong deterrence given the significant level of wage default and the near-complete failure of the compliance notice regime to achieve meaningful rectification. The maximum penalty available for the relevant offence was $8,250.00, and the FWO argued for a penalty in the higher range of 70-80% of this figure. Ms. Scanlon submitted that no discount should be allowed due to Mr. Brinkies' lack of previous industrial regulatory offences, which the court accepted. Despite Mr. Brinkies’ personal financial struggles and status as a single parent, the court determined that these circumstances did not mitigate the penalty given the regulatory nature of the offence and the need for deterrence.
In conclusion, the court found that a penalty of $6,600.00 was appropriate, taking into account the seriousness of the offence and the necessity for both general and personal deterrence. The court declared that Agile Group contravened the applicable provision of the Fair Work Act and that Mr. Brinkies had accessorial liability for the breach. The penalty was deemed payable to the Commonwealth. The court’s final orders reflected these findings, including the declarations sought by the FWO.
Orders
Orders of the court
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Background
Background to the litigation
In all these circumstances, the issues which require the court’s adjudication centre on the following matters:·Whether the proceedings, against Mr Brinkies, so far as liability are concerned, can be dealt with on an undefended basis;·If so, can he be found to have accessorial liability for the actions of the employer Agile in respect of its failure to comply with the statutory notice served upon it; and·If accessorial liability is established, what should be the quantum of the penalty to be imposed on Mr Brinkies.BACKGROUND Agile was a company that offered security services for night clubs and events around Australia. During the period relevant to these proceedings, between 29 November 2021 and 27 July 2022, it employed 18 persons to discharge its contractual obligations in this regard. Two of these employees were covered, as to their terms and conditions, by the provisions of a modern award known as the Clerks – Private Sector Award 2020 with the remaining 16 employees being covered by the provisions of the Security Services Industry Award 2020. In January of 2022, the FWO was contacted by a former employee (Mr Gane) of Agile, who apparently alleged that he had been subject to some irregularities in his employment by Agile. This matter is not the subject of the current proceedings[7] but led to the FWO directing a Fair Work Inspector, Andrew John Davies to conduct a larger investigation into Agile’s conduct in respect of a larger number of its employees. [7] See FWO’s submissions filed 21 October 2024 at [4]. Between May 2022 and January 2023, 18 former employees of Agile approached the FWO to seek advice and request assistance in relation to their respective wage and employee entitlements, whilst employed by Agile, between 29 November 2021 and 27 July 2022. Between May of 2022 and January 2023, FWI Davies deposed that each of the eighteen employees of Agile were interviewed by a FWO Assessment Officer and FWI Davies further interviewed ten personally. During and following each interview FWI Davies and the respective Assessment Officer had reviewed their employment contracts; timesheets; payslips; and other documents relating to their employment, particularly various certified agreements, relating to event management in Queensland and Victoria. During his investigation, FWI Davies corresponded with Mr Brinkies on various occasions, including by telephone and email. In this correspondence, Mr Brinkies described himself as the Head of Group Operations for Agile. On 8 June 2022, Mr Brinkies indicated to FWI Davies that he had been charged by the powers that be at Agile to look into the various complaints of award underpayments, which FWI Davies had been asked to investigate and sort it out.[8] Mr Brinkies also said that moving forward, everything will come to me personally.[8] See Court Book filed 27 November 2024 at pages 334 – 335. On 10 August 2022, FWI Davies issued a notice to produce records or documents regarding its payroll and employment records for the relevant employees concerned. Mr Brinkies and Mr Boyle were included in the email in which the notice to produce was served. On 11 August 2022, Mr Brinkies emailed FWI Davies and informed him that Mr Boyle was incapacitated due to being in receipt of treatment for cancer. Mr Brinkies also apologised for the delay but indicated the view that all matters were resolved.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In my view, it is important that employers recognise that compliance notices are significant and are thus encouraged to manage their business so that errors, including innocent ones, can be rectified quickly and cheaply for the benefit of both business and employee. These considerations are applicable to both large and small employers. CONCLUSIONS Given the idiosyncratic features of the matter, which include the liquidation of the first respondent; Mr Brinkies’ own corporate history; the need to apply strong measures of deterrence; and the obvious fact that there has been a close to complete failure of the compliance notice regime to bring about any meaningful level of rectification of what must be regarded as a significant level of wage default; I am satisfied that the case calls for a significant level of penalty. As previously indicated the maximum penalty available for the one applicable offence is one of $8,250.00. The FWO asserts that the seriousness of the offending warrants the imposition of a penalty in the higher range of between 70 and 80% of this figure. It is the submission of Ms Scanlon that there should be no discount allowed in respect of such a calculation because Mr Brinkies has not previously been found to have contravened any industrial regulatory offence. I accept this submission. In his own submission to the court, before he withdrew from the proceedings, Mr Brinkies indicated that he was struggling financially and was a single parent. Given the quantum of the applicable maximum penalty; the regulatory nature of the offence in question; and the pressing need for both general and personal deterrence in the case; I do not regard Mr Brinkies’ personal circumstances can have any mitigating effect on the penalty to be imposed for one count, which has affected eighteen employees. In all the circumstances of the case, I consider a penalty of $6,600.00 to be an appropriate one. I will make the declarations sought by the FWO that Agile contravened the applicable provision of the FWA and Mr Brinkies has accessorial liability for such breach. It is clearly appropriate that the penalty be payable to the Commonwealth. For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
Ratio Decidendi
Legal Principle Established
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