Fair Work Ombudsman v Agile Group (Global) Pty Ltd
[2025] FedCFamC2G 46
•22 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Agile Group (Global) Pty Ltd [2025] FedCFamC2G 46
File number: ADG 227 of 2023 Judgment of: JUDGE BROWN Date of judgment: 22 January 2025 Catchwords: INDUSTRIAL LAW – Fair Work – Liability and penalty hearing – Failure to comply with issued Compliance Notice – First Respondent placed into liquidation in February 2024 – Calculation of penalty – Consideration of deterrence – Where the hearing proceeded undefended – Matters to be considered Legislation: Corporations Act 2001 (Cth) s 471B
Fair Work Act 2009 (Cth) ss 3, 539, 545 546, 550, 681, 682, 701, 706, 712, 716, 717
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 Div 13.2, rr 13.04, 13.05
Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Australian Securities and Investments Commission v Albarran [2008] FCA 147
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
Buckingham v KSN Engineering Pty Ltd [2008] FMCA 546
Fair Work Ombudsman v Ansa Finance Pty Ltd [2022] FedCFamC2G 833
Fair Work Ombudsman v Corporation Sun Pty Ltd [2020] FCCA 2849
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Fair Work Ombudsman v Matcraft Pty Ltd [2021] FCCA 272
Fair Work Ombudsman v Trek North Tours & Anor (No 2) [2015] FCCA 1801
Fair Work Ombudsman v Yogurberry World Square [2016] FCA 1290
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65
Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503
Speedo Holdings B.V. v Evans (No.2) [2011] FCA 1227
Veen v R (No 2) (1988) 164 CLR 465
Division: Division 2 General Federal Law Number of paragraphs: 134 Date of hearing: 13 December 2024 Place: Adelaide Counsel for the Applicant: Ms Scanlon Solicitor for the Applicant: Office of the Fair Work Ombudsman First Respondent: No appearance Second Respondent: Litigant appeared in person 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 section 546(1) of the Act, within twenty-eight (28) days of these orders, the Second Respondent pay a pecuniary penalty of SIX THOUSAND AND SIX HUNDRED DOLLARS ($6,600.00) to the Commonwealth for having breached a civil penalty provision of the Act as set out at Declaration 2 above.
4.The time for the Applicant to have filed and served any evidence and an outline of submissions on the issues of liability and any penalty be extended to 22 October 2024.
5.The Applicant have liberty to apply on seven (7) days' notice in the event that any of the above orders are not complied with.
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 (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), 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 BROWN:
INTRODUCTION
The Fair Work Ombudsman[1] commenced proceedings against Agile Group (Global) Pty Ltd[2] and Justin Benjamin James Brinkies[3] on 4 August 2023, pursuant to the provisions of the Fair Work Act 2009 (Cth).[4]
[1] Hereinafter referred to as “the FWO” or “the Ombudsman”.
[2] Hereinafter referred to as “Agile” or “the first respondent”.
[3] Hereinafter referred to as “Mr Brinkies” or “the second respondent”.
[4] Hereinafter referred to as “the FWA” or “the Act”.
The proceedings relate to an allegation made by the FWO that Agile failed to comply with a statutory notice requiring it to remedy the underpayment of eighteen of its staff members, who were employed by Agile between 29 November 2021 and 27 July 2022. The amount of the underpayment is alleged to be $96,626.02.
Section 716(5) of the FWA renders it a civil remedy provision if a person to whom a compliance notice is addressed fails to comply with such a notice within the time frame provided. The relevant compliance notice was issued on 3 February 2023 which required calculation and rectification of the underpayment on or before 3 March 2023.
Agile was incorporated on 1 August 2016. Mr Brinkies was a director of the company between that date and 1 June 2018. From 27 September 2021, Mr Michael Boyle was its sole director. Mr Boyle has taken no part in these proceedings.
On 2 February 2024, Agile was placed into liquidation by order of the Federal Court of Australia. Leigh Prior[5] was appointed its liquidator. Mr Prior reported to Agile’s creditors on 1 May 2024. In this report, Mr Prior wrote as follows:
The Director [Mr Boyle] has advised, and it has been confirmed by the previous directors of the Company, that due to poor health he has had very limited involvement in the Company since about February 2023.
Mr Brinkies was disqualified from managing corporations between September 2019 and 14 September 2023, due to:
•Being a bankrupt since September 2019; and
•On 21 September 2021, ASIC disqualifying him from managing corporations for two years due to various failures relating to his role as director of entities within the Trojan Group of companies, which operated around Australia providing security services.
Notwithstanding this, I am advised that Mr Brinkies remained very active in the operation and control of the business and my preliminary view is that he may have been a shadow or de facto director of the Company.[6]
[5] Hereinafter referred to as “the liquidator” or “Mr Prior”.
[6] See Court Book filed 27 November 2024 at pages 449 – 450.
The relevant compliance notices were issued to Mr Boyle and Agile and a copy was provided to Mr Brinkies at the same time. It is the position of the FWO that Mr Brinkies had a managerial role at Agile and should be regarded as having accessorial liability for the actions of Agile pursuant to the provisions of section 550(2) of the FWA.
The FWO alleges that Agile failed to comply with the notice addressed to it. As a consequence of the provisions of section 471B of the Corporations Act 2001 (Cth), given its liquidation, the proceedings commenced by the FWO against Agile are stayed.
The FWO has elected not to proceed against Mr Boyle. Essentially, it accepts that he was not an active participant in the affairs of Agile at relevant times and the company’s operational brain was, to all intents and purposes, Mr Brinkies. Consequently, he was named as the second respondent to the proceedings.
Mr Brinkies has had a limited involvement in the matter. It is his position that he was an employee of Agile and was a mere messenger between it and the various officers of the FWO, which investigated the underpayments in question. In his own phraseology, his position is analogous to that of a receptionist, who answer queries put to a business by members of the public but is not responsible for rectifying them. As such, he denies any accessorial liability.
The FWO does not agree. Essentially, it asserts that Mr Brinkies held himself out to it as having responsibility, at Agile, for staff arrangements and wage payments. In addition, given his previous involvement in the company and the reasons why he was not formally able to be a director of Agile, it asserts that it would be nonsensical for it to regard Mr Brinkies as anything other than the active and sole guiding hand of Agile.
The maximum penalty, at relevant times, for an individual found to have contravened section 716(5) of the FWA, is $8,250.00. Although there are eighteen employees affected and the amount of underpayment involved cannot be regarded as being trivial, there is only one count involved and so only one fine can be imposed.
It is the submission of the FWO that, although Mr Brinkies has not previously been found to have contravened any other provision of the industrial regulatory regime, his past history as a director and employer, renders his conduct, in this matter, attracts a need for both specific and general deterrence. It submits that a penalty of between 70% and 80% of the maximum amount should be opposed.
In addition, the FWO characterises the breach of section 716(5) arising in this matter to be a serious one, which concerns multiple employees, who are to be regarded as being vulnerable to wage exploitation given their respective backgrounds and the nature of the industry – the security industry – in which they were each employed.
For his part, Mr Brinkies has indicated that he is of the view that it would be unjust to penalise him personally given what he asserts was his minor role at Agile at relevant times. In addition, he asserts that he is a modest income earner and single parent, with no capacity to pay any fine which may be imposed.
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.
On 19 August 2022, FWI Davies emailed Mr Brinkies and informed him of the names of the employees who has sought assistance and claimed that they had been issued with payslips but not paid. FWI Davies further indicated that Mr Brinkies had told him earlier that some of these underpayments had been rectified. In this context, he requested documentary confirmation that this was so.
Thereafter, on 24 August 2022, Mr Brinkies asked for an extension of time in complying with the notice to produce. Such an extension was not forthcoming and on 25 August 2022, Lesley Ting, described in correspondence as the account and logistics officer for Agile provided payroll data to FWI Davies.[9]
[9] See Court Book filed 27 November 2024 at page 90.
Matters seem to have been in abeyance for some months thereafter until there was a further telephone call between Mr Brinkies and FWI Davies, which took place on 20 December 2022. In the relevant conversation, Mr Brinkies indicated that the required payments had been made about four months ago.
FWI Davies indicated that he had been contacted by many of the employees concerned, who had told him that this was not the case. In these circumstances, FWI Davies expressed the view that Mr Brinkies had had ample time to make the payments required and it was his (FWI Davies’) intention to issue a compliance notice.
On 24 January 2023, Mr Brinkies telephoned FWI Davies and said that he intended to sort this out and pay everyone their money but [if one of the complainant employees kept agitating issues with other staff] he (Mr Brinkies) would just wipe the business completely and start again and he would wind up the business up and wipe our hands of our obligations. In this conversation, Mr Brinkies also indicated that the legal advice he had received was to wind the company up.[10]
[10] See Court Book filed 27 November 2024 at page 353.
I appreciate that these matters have not been specifically put to Mr Brinkies in cross-examination and nor has he elected to respond to them on oath in an answering affidavit, but in my view, these are not sentiments consistent with Mr Brinkies having anything other than an executive role at Agile. In addition, some of the aggrieved workers have reported to officers of the FWO their impression that Mr Brinkies being a former director of Agile and its founder was the person who ran everything to do with the company including emails and payroll.[11]
[11] See Court Book filed 27 November 2024 at page 358.
It was in these circumstances that FWI Davies issued the relevant compliance notice to Agile on 3 February 2023. The relevant notice did not include the employee, Mr Gane, who had been the catalyst for the initial investigation undertaken by the FWO’s office.
The compliance notice names eighteen employees – as indicated above two of whom are covered by the Clerks Award with the remainder covered by the Security Award. In each case, the nature of the employment is noted – three employees being full time; one part time; and the remainder casual. In addition, the period of employment during which it is asserted the relevant award has been contravened are set out.
Thereafter, in a table with 19 sections, each clause of the award, as it is asserted to apply to each employee is set out. By way of example, the two employees covered by the Clerks Award are said not to have received the specified minimum full-time adult wage. The others covered by the Security Award not to have been paid various penalty rates applicable to overtime; work on weekends and on public holidays; casual loadings; and for working permanently at night.
Thereafter, the notice required the employer to undertake a number of discrete steps prior to 3 March 2023, which can be summarised as follows:
·Calculate the monies due to each nominated employee under the specified provisions of the two awards identified to it;
·Rectify the underpayments so calculated, including paying any superannuation relevant.
Thereafter, prior to 10 March 2023, the employer was required to:
·Provide satisfactory documentary proof to the FWO of the calculations required and that the full payment had been made to each employer identified in the notice.
FWI Davies has deposed that Agile failed to comply with the requirements of the compliance notice. However, that is not to say that nothing was done by Agile in respect of the matters raised by the FWO in its investigations of underpayments at the company. Significantly, on 6 April 2023, Mr Ting provided his calculations of what was due to each employee.
On 18 April 2023, in an email sent to both Mr Ting and Mr Brinkies, FWI Davies indicated that he accepted the calculations provided to him as to award minimum rates, overtime and penalty rates applicable to the employees named in the compliance notice. He went on to write as follows:
The critical aspect of the matter from now is that the rectification payments, as per the calculations, are made immediately.[12]
[12] See Court Book filed 27 November 2024 at page 329.
FWI Davies concedes that one employee was paid $2,100.00 of the $3,966.17 owed to him. This payment was made in August of 2022. Another employee was paid $4,398.00 of the $9,285.18 owed to him on 3 February 2023, the day on which the compliance notice was issued. However no other payments were made.
Taking into account these payments and excluding the monies due to Mr Gane, who was the subject of an earlier compliance notice which is not included in these proceedings, on my calculations, as indicated above, the amount of wages owed to the eighteen individual employees concerned is $96,626.02. The largest sum outstanding is $22,496.76; the smallest $770.73. Accordingly, on average, the amount concerned is approximately $5,368.00.[13]
[13] See Schedule 2 to Statement of Claim filed 4 August 2023.
In these circumstances, the FWO commenced these proceedings on 4 August 2023 with the filing of a statement of claim. A significant aspect of this claim was the allegation that Mr Brinkies bore accessorial liability for the conduct of Agile, in particular that it (Agile) did not fully comply with the compliance notice served upon it.
In this context, it was alleged that Mr Brinkies had actual knowledge of the notice and was an intentional participant in Agile’s failure to pay the wages due to the nominated employees, leading to his personal involvement in the contravention.
Agile and Mr Brinkies filed a defence on 17 November 2023 through solicitors. Mr Brinkies admitted that he was Head of Group Operations and as such was tasked with preparation of payroll for the company. He denied that he had any responsibility for ensuring Agile’s compliance with any of its legal obligations under the FWA.
Agile denied that it had breached the various provisions of the awards specified in the statement of claim asserting that it had paid proper amounts or required further particulars of underpayment. It further asserted that it had a reasonable excuse for not complying with the notice. Mr Brinkies formally admitted that he had knowledge of the compliance notice.
As indicated above, Agile was placed into liquidation on 2 February 2024. In March of 2024, Mr Brinkies indicated to the court that he required more time to obtain records from the liquidator before presumably he would be in a position to elaborate on his defence. In these circumstances on 21 August 2024, orders to the following effect were made:
·The matter be listed for a liability and penalty hearing on 13 December 2024;
·The FWO file any evidence and outline of submissions on the issue of both liability and penalty no later than eight weeks prior to the hearing;
·Mr Brinkies file his evidence and outline of submissions on the issue of both liability and penalty no later than five weeks prior to the hearing; and
·Mr Brinkies was given liberty to relist the matter at short notice.
There can be no doubt that Mr Brinkies was aware of this order and the date allocated for hearing because he successfully sought the court’s leave to appear electronically at it. He did not file any evidence or submissions in support of the matters raised in his defence.
On 13 December 2024, Mr Brinkies attended court, via a video link, from where he was then working in suburban Adelaide. As indicated above, he compared his position, at Agile, to that of a receptionist, who had been charged with conveying information from his unspecified superiors to the FWO about the affairs of Agile, of which he was not a director at relevant times.
He further indicated that he could not be personally present at court due to his need to earn an income to support his family. He also left the call apparently to fulfill a direction of his supervisor. From my perspective, the interaction was wholly unsatisfactory and in my finding was indicative of an extremely cavalier approach to both the court and the application of the FWO, but most significantly to the various employees concerned. In this context, other matters raised by the FWO as to Mr Brinkies’ previous and current directorial and corporate experience are, in my view, highly relevant.
MR BRINKIES’ PRIOR CORPORATE HISTORY
In my view, it is highly significant that Mr Brinkies was a director of Agile from 1 August 2016, which was two months after its incorporation until 1 June 2018. It seems to me to be highly improbable that he surrendered his effective directorial and executive responsibilities at this later date, whilst remaining in the company’s employ in a non-managerial/supervisory or subordinate role.
In all the circumstances of this matter, including how Mr Brinkies held himself out to FWI Davies as the Head of Group Operations for Agile and the person who would sort out the issue of underpayment to the employers concerned, when coupled with the threat uttered by him that he personally would wipe the business, it seems far more probable that Mr Prior’s assessment that Mr Brinkies is to be regarded as a shadow or de facto director of Agile is the correct one.
My finding in this regard is fortified by the reason why Mr Brinkies was not in a position to be a director of Agile. On 24 September 2021, a delegate of the Australian Securities and Investments Commission[14] disqualified Mr Brinkies from being able to manage corporations for a period of two years.
[14] Hereinafter referred to as ASIC.
ASIC filed a media release in order to provide public elaboration of its reasons for taking this action. It indicated that Mr Brinkies had been a director of seven companies, known as the Trojan Group, which had operated throughout Australia, providing security services. These companies had:
·Failed to lodge documents with the Australian Tax Office;
·Failed to pay superannuation to their employees;
·Failed to maintain adequate records and books;
·Sold company assets without ensuring proper consideration was received by the companies concerned;
·Authorised director loans and drawing which were unlikely to be repaid;
·Traded whilst insolvent;
·Failed to cooperate with liquidators.[15]
[15] See Court Book filed 27 November 2024 at pages 485 – 487.
In addition, Mr Brinkies was made bankrupt, on the petition of the Deputy Commission of Taxation on 10 September 2019 being automatically discharged on 11 September 2022. At the time of the action of ASIC and the ATO, the Trojan Group owed unsecured creditors the amount of $6.9m, of which $3.5m was owed to the ATO.
In his report to creditors, Mr Prior reported that Agile owed $6.7m to unsecured creditors; $800k to secured creditors; and $1.5m to its employees. The prospect of any dividend being paid appeared to him to be remote.
In all these circumstances, Ms Scanlon, counsel for the FWO has raised the concerns of the industrial regulator that company searches have revealed that Mr Brinkies, having completed the period of his directorial disqualification, is the director of a company Balmoral Services Group Pty Ltd and has been since 3 October 2023.
Mr Brinkies has not provided any evidence as to the purpose of this company and whether it does, or is intending to, employ staff. For obvious reasons, the industrial regulator is anxious to ensure that any current or future employees of this company are not disadvantaged financially by the manner in which it is operated, given the previous history of employees of both the Trojan Group and Agile itself, to both of which Mr Brinkies has had a significant level of involvement.
THE NATURE OF AN UNDEFENDED HEARING
As indicated above, Mr Brinkies has not filed any affidavit evidence in these proceedings and, apart from a denial of any personal liability, has not formally refuted the matters alleged against him in the lengthy and comprehensive affidavit filed by FWI Davies.
The court cannot compel any respondent to engage in the litigation before it. It is however obliged to give each respondent to the proceeding concerned the opportunity to put evidence before the court and, if he or she wishes to do so, contest any evidence relied upon by the applicant.
In this case, I am satisfied Mr Brinkies has been given an opportunity to take part in the proceedings and, indeed, has done so, to some degree. However, in my assessment, he has not done so in any proactive or meaningful way. It is not sufficient for him to merely assert that he was only an employee of Agile and therefore had no responsibility for its actions.
In this context, he has been provided with FWI Davies’ lengthy affidavit, which contains details of his (Mr Brinkies) prior corporate governance history, including in respect of his earlier involvement with Agile, which as detailed above, in my view, calls into question his blank denial of any supervisory or executive role at Agile. Mr Brinkies has elected not to respond to that affidavit in any way or to come to court in person.
In this particular case, the respondents have chosen not to participate in the proceedings in any meaningful way. A respondent, whether by intransigence, disinterest or manipulation cannot succeed in denying an applicant a just resolution, according to law, of its application, by choosing not to take part in a proceeding or doing so on a limited or provisional basis. In these circumstances, the court has mechanisms to resolve applications in the absence of a party, if it is satisfied it is appropriate to do so.
The chief mechanism, in this regard, is provided by Division 13.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. Rule 13.04 defines the circumstances in which a party is in in default, which includes those in which a respondent has failed to defend the proceedings with due diligence, including failing to comply with an order of the court to file and serve a document.
In this matter, Mr Brinkies has failed to file any affidavit evidence in rebuttal of the FWO’s allegation that he is accessorily liable for the actions of Agile and, in my view, has otherwise failed to attend to any defence of these proceedings with the required degree of diligence, which requires more than a bare denial of liability.
Pursuant to the provisions of rule 13.05 if it is found a respondent is in default the court may give judgment in favour of any plaintiff concerned, including one that is based on a statement of claim filed in the proceedings.
In Speedo Holdings B.V. v Evans (No.2)[16] Flick J identified some principles, which are to be applied by the court, when considering whether to enter a judgment against a defaulting respondent. They can be summarised as follows: firstly, the power is discretionary; and secondly, it must necessarily be utilised cautiously.
[16] Speedo Holdings B.V. v Evans (No.2) [2011] FCA 1227 at [20]–[21].
In all the circumstances of this case, I am satisfied that the second respondent has failed to defend the proceedings with due diligence. In particular, he has failed to file any evidence in the case, notwithstanding the order of the court that he do so. Further, in my view, his attendance at court, via a video link, from a location in suburban Adelaide, falls far short of what is required to defend this case with due diligence. Therefore, I am satisfied that it is appropriate to proceed to determining the applicant’s application on the basis of the pleadings contained in its statement of claim.
LEGAL PRINCIPLES APPLICABLE
The objects of the FWA are contained in section 3. They include the provision of an industrial safety net, for Australian employees, which is maintained through the enforcement of a system of minimum terms and conditions specified in the modern award system.
The Office of the Fair Work Ombudsman is created by section 681 of the FWA. One of the functions of the Ombudsman under section 682 of the FWA is to enforce compliance with the Act, including any workplace obligations residing on employers, as a consequence of relevant industrial awards, mandating rates of pay and conditions of employment.
In turn, the FWO may appoint Fair Work Inspectors, who are authorised to utilise what are characterised as compliance powers.[17] In general terms, inspectors are directed to investigate complaints in respect of breaches of the industrial law and are authorised to enter workplaces and determine whether an employer has contravened the law, including in respect of the application of any relevant modern award or otherwise failed to comply with the industrial safety net.
[17] See Fair Work Act 2009 (Cth) s 706.
In addition, the FWO has a responsibility to educate, advise and assist, both employers and employees, in respect of their respective obligations, arising under the Act and, if necessary, commence proceedings, in appropriate courts, to enforce the provisions of the FWA.
Section 682(1) of the FWA confers a number of functions on the Ombudsman, which include promoting compliance with the Act through providing assistance to employers so that they know the extent of their obligations to their employees, particularly in terms of their employees’ entitlements.
The aim being to iron out problems and misunderstandings expeditiously and in a cost effective manner, without recourse to litigation so that underpayments are rectified efficiently and fairly. As will be delineated in due course, it is in this context that the power conferred upon a Fair Work Inspector to issue compliance notices must be considered.
Pursuant to section 701 of the Act, the FWO is also a Fair Work Inspector. The FWA empowers the Ombudsman to delegate its statutory responsibilities to Fair Work Inspectors. The Act confers upon such inspectors a number of powers in order to ensure compliance with provisions of the Act. Among other things, inspectors can enter the workplace and require the production of employee records.[18] Mr Davies at relevant times, held the office of Fair Work Inspector under the Act.
[18] See Fair Work Act 2009 (Cth) s 712(1).
I have been provided with the correspondence which passed between FWI Davies and Mr Brinkies prior to the issue of the compliance notice and afterwards. I am satisfied that it cannot be said the Fair Work Inspector behaved in a cavalier or high-handed fashion towards either Mr Brinkies or Mr Ting. Indeed, FWI Davies accepted the calculations made by Mr Ting and urged Agile to pay the sums so calculated to avoid these proceedings.
In addition, the FWO, as a consequence of its status as a Fair Work Inspector, has statutory authority to bring proceedings under the Act and seek the imposition of penalties, if breaches of the FWA are established.[19]
[19] See Fair Work Act 2009 (Cth) s 539(2).
Section 716(1) of the Act provides that, if an inspector believes, on reasonable grounds, that a person has contravened a provision of the National Employment Standards, the inspector concerned may issue that person with a ‘compliance notice’ requiring the person nominated to take action to remedy the contravention in question.
Pursuant to the applicable legislation, any compliance notice must provide particulars of the contraventions of the Act alleged and outline any rights of review that arise under the Act. There is no issue in the present case other than that the compliance notice in question complies with the provisions contained in sections 716(2) and 716(3) of the FWA.
Sections 716(1) and 716(2) of the Act delineates the criteria, which must be satisfied before an inspector may issue a compliance notice. Firstly, the power itself is a discretionary one and like all administrative decisions must be exercised reasonably.
Whether a discretion, conferred by statute, is exercised in a legally reasonably manner, it must be determined by reference to the statute itself, particularly its subject matter, scope and purpose.[20]
[20] See Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, 370-371 [90] (Gageler J).
In this particular case, as indicated above, one of the purposes of the FWO is to provide an industrial safety net, for workers, so far as the application of industrial awards is concerned, as well as to educate employers in regard to their industrial responsibilities.
Secondly, the discretion may be exercised only once a reasonable belief is formed by the relevant inspector. The discretion must be exercised appropriately and not in an arbitrary, illogical or capricious manner.
In Fair Work Ombudsman v Ansa Finance Pty Ltd[21] Judge Forbes said of what was required for the court to conclude that a Fair Work Inspector had been able to reach the perquisite degree of belief was as follows:
In determining whether or not there was a reasonable belief, is not necessary for the Court to be satisfied on the balance of probabilities that the underlying contraventions of fair work instruments have in fact occurred. The proper test is whether there was a rational basis for the Inspector’s belief based on the information available to the Inspector at the time the reasonable belief was formed.
[21] Fair Work Ombudsman v Ansa Finance Pty Ltd [2022] FedCFamC2G 833 at [129].
The task conferred on the inspector is one which entails an objective assessment of all the material available to him. In this case, FWI Davies had statements for each employee concerned and documents provided by Agile itself pursuant to the notice to produce. He provided an opportunity to Mr Brinkies to comment on that material.
In these circumstances, I am satisfied that the evidence indicates that FWI Davies was able to form a reasonable belief, on the basis of the evidence available to him, that Agile had breached the various provisions of the two awards applicable to the eighteen employees concerned.
Section 717(1) of the Act authorises a person who has been serviced with a compliance notice to apply to the court to have the notice reviewed on the basis that there has been no contravention as specified or the notice does not otherwise comply with the applicable legislation.
In Fair Work Ombudsman v Matcraft Pty Ltd, Judge Kendall explained the legislative intention of a compliance notice, as an alternative to litigation, in the following terms:
As explained in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth), the purpose of s 716 of the Act is to provide an alternative to litigation. Section 716 is an informal mechanism whereby the applicant can identify potential contraventions of the Act and seek rectification without an employer having to admit liability.
One of the objects of the Act is to provide accessible and effective procedures to resolve grievances and disputes and provide effective compliance mechanisms. Section 716 encapsulates this objective by allowing employees to make a request for assistance which the applicant can then resolve through the use of s 716.[22]
[22] Fair Work Ombudsman v Matcraft Pty Ltd [2021] FCCA 272 at [34]-[35] (Kendall J).
In addition, as previously indicated, the relevant legislation allows an employer to challenge a notice if it is believed there are no grounds for its issue or the notice itself is invalid. In these circumstances, it is the contention of the FWO that if the respondents had complied with the notice in question, it would have been precluded from bringing these proceedings, with a commensurate saving of public resources.
In Fair Work Ombudsman v Trek North Tours & Anor (No 2),[23] Judge Jarrett (as his Honour then was) explained the underlying rationale of the compliance notice system in the following terms:
The provision of notices to employers serves a number of purposes, not the least of which is to give the employer an opportunity to deal with the contravention that is being alleged, or, in the case of notices to produce, to provide information which would demonstrate that no contravention of the Act has occurred. The regime set out under s.716 and s.717 of the Act relating to compliance notices represents a regime which would avoid proceedings coming to a court at all if an employer took the steps set out in those sections.[24]
[23] Fair Work Ombudsman v Trek North Tours & Anor (No 2) [2015] FCCA 1801.
[24] Fair Work Ombudsman v Trek North Tours & Anor (No 2) [2015] FCCA 1801 at [22].
Accordingly in general terms, the successful implementation of the process envisaged when a compliance notice is issued represents a win/win for all concerned in the following terms:
·An underpaid employee gets his/her entitlements expeditiously and as calculated pursuant to all the applicable provisions of the relevant award;
·An employer is educated about his/her responsibilities under the relevant industrial system without being penalised or forced to incur the costs and indignities of litigation or indeed to be identified as an errant employer; and
·The public purse is spared the cost of bringing expensive proceedings to court.
The failure of the respondent to comply with the relevant notice served upon him engages the provisions of section 716(5) of the Act, which renders it a civil remedy provision if a person fails to comply with a compliance notice.
ACCESSORIAL RESPONSIBILITY
Pursuant to section 550(1) of the FWA, a person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Section 550(2) provides the circumstances in which a person is taken to have been involved in a contravention of a civil remedy provision. The circumstances can be summarised as follows:
·the person has aided, abetted, counselled or procured the contravention;
·has induced the contravention;
·has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
·has conspired to bring the contravention about.
In Buckingham v KSN Engineering[25] Lucev FM (as his Honour then was) summarised the legal test for sheeting liability to a potential accessory in the following terms; before such a person could be considered an accessory under the Act, could it be established that:
·did he or she have knowledge of the essential facts constituting the contravention;
·was he or she knowingly concerned in the contraventions;
·was he or she an intentional participant in the contravention based on actual or constructive knowledge of the essential facts constituting the contravention – although constructive knowledge may be sufficient in cases of wilful blindness; and
·however, such an individual did not need to know that the matters in question constituted a contravention.
[25] Buckingham v KSN Engineering Pty Ltd [2008] FMCA 546 at [40].
In Fair Work Ombudsman v Devine Marine Group Pty Ltd[26] White J explained the concept of a party being knowingly concerned in a contravention under the FWA in the following terms:
The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention…
[26] Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [178].
In Qantas Airways Ltd v Transport Workers’ Union of Australia[27] Moore J summarised a number of authorities dealing with this concept of knowingly concerned. It involves conduct with implicates or involves the person concerned in the relevant contravention such that he or she has a practical connection to the contravention. Such a connection can be inferred from the circumstances surrounding the essential matters of the contravention.
[27] Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 at 567, [324].
In the current matter there can be no doubt that Mr Brinkies knew of both the issue of the compliance notice and the facts leading up to its issue. He was sent a copy of the notice and corresponded with FWI Davies both before and after it was issued, in his capacity as Head of Group Operations at Agile.
In addition, Mr Brinkies held himself out to the Fair Work Inspector as being the person, at Agile, who would resolve or sort out the issue of the underpayments concerned. He directed Mr Ting to carry out the necessary calculations required. It was he was who threatened to wipe the company, if pressed too far. In all these circumstances, I have no difficulty in reaching the conclusion that Mr Brinkies was knowingly concerned in the failure of Agile to pay its relevant employees the sums due to them.
I also find, to all intents and purposes, notwithstanding his withdrawal as a director of Agile, it was the case that he retained operational control and responsibility for the company. It was only his ASIC disqualification which prevented him from retaining the formal trappings of this position at the company. As such, I find that he was implicated in Agile’s contravention of the notice and was involved in its management at a senior level.
In this context, I accept Ms Scanlon’s submission that Mr Brinkies was intimately involved in the operation and management of Agile to such a degree that Agile’s failure to comply with the notice must be regarded as intrinsically linked with Mr Brinkies’ own role such that the company’s failure to comply is just as much his responsibility as that of the company.
Pursuant to section 716(6) of the FWA, the penal provision of the section does not apply if the recipient of a compliance notice establishes a reasonable excuse for non-compliance. In their defence both Agile and Mr Brinkies have asserted that they have a reasonable excuse for not complying with the notice.[28]
[28] See Defence filed 17 November 2023 at [24] & [27].
Clearly, the evidentiary onus is on Mr Brinkies to establish such an excuse and in the absence of any affidavit material from him I do not consider that he has discharged this onus. Essentially, in the defence it is asserted that Mr Brinkies queried the application of some aspects of the two awards to the employees and sought clarification from FWI Davies about these matters.
In my view, the evidence available indicates that FWI Davies responded to these queries. More significantly, he indicated to Mr Ting that he accepted the calculations which he had undertaken as the amount due, which were based on the classifications applied by the Fair Work Inspector. More significantly, neither Agile nor Mr Brinkies sought to challenge the notice in court pursuant to their entitlement under the provisions of section 717 of the FWA.
I accept that necessarily it may well have been the case that Agile did not have the funds to make the payments in question and it would have been inconvenient to have raised the funds. In this context, relevant authority indicates that the expense and inconvenience associated with compliance with a notice are not usually sufficient to establish any reasonable excuse for the purposes of section 716(6).
In Australian Securities and Investments Commission v Albarran[29], Jacobson J identified a number of criteria relevant to whether a reasonable excuse was established, which can be summarised as follows:
·It relied on an analysis of the relevant statute and circumstances of each particular case;
·It is a concept not confined to any physical or practical difficulties in complying with the statutory prescription;
·It includes any excuse which a reasonable person would accept as being sufficient to justify non-compliance, bearing in mind the importance of applicable statutory regime;
·The question of what constitutes a reasonable excuse must be objectively determined from all the circumstance of the matter.
[29] Australian Securities and Investments Commission v Albarran [2008] FCA 147 at [81] – [83].
In Fair Work Ombudsman v Devine Marine Group Pty Ltd[30] White J said as follows:
The expense and inconvenience (and perhaps oppression) in complying, will not usually provide a “reasonable excuse” for non-compliance with the notice. It is to be expected that compliance will usually occasion a respondent some inconvenience and expense but, unless the circumstances are out of the ordinary this is to be taken to be a necessary incidence of compliance and will not relieve the respondent from complying with the notice.
[30] Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [165].
The statutory purpose of the compliance provisions of the FWA is to ensure that employees are provided their proper wage entitlements promptly. In this context, the relevant compliance notice has been singularly ineffective. I am satisfied that no reasonable excuse has been established.
THE LEGAL PRINCIPLES APPLICABLE TO PENALTY HEARINGS
Pursuant to the provisions of section 546 of the FWA, upon finding that the respondent has contravened the compliance notice provisions of the Act, the court is authorised to impose a pecuniary penalty. It may also, pursuant to the provisions of section 545(2) make an order awarding compensation for any loss that a person has suffered because of the contravention.
It has been said that the calculation of a civil remedy penalty is a process of intuitive synthesis. Gray J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith said as follows:
[What is required is] to determine an appropriate level of penalty for each contravention, as if it were a separate offence, and then look at the aggregate of those penalties in the light of the overall conduct of the [offender], to form a view as to whether that aggregate [is] out of proportion to that overall conduct.[31]
[31] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [23] (Gray J).
Regardless of these considerations, the fundamental task, for the court, is to determine, from all the factual circumstances arising, the gravity or seriousness of the offending, which it is called upon to penalise. The considerations relevant to this task have been delineated in a number of decisions of both this court and the Federal Court.[32] The considerations are as follows:
[32] Mason v Harrington Corporation Pty Ltd [2007] FMCA 7; Kelly v Fitzpatrick [2007] FCA 1080 at [14]. (Tracey J); Blandy v Coverdale NT Pty Ltd [2008] FCA 1533 at [23] (Reeves J).
·The nature and extent of the conduct which led to the breaches;
·The circumstances in which the conduct took place;
·The nature and extent of any loss or damage sustained as a result of the breaches;
·Whether there has been similar previous conduct by the respondent;
·Whether the breaches were properly distinct or arose out of the one course of conduct;
·The size of the business enterprise involved;
·Whether or not the breaches were deliberate;
·Whether senior management was involved in the breaches;
·Whether the party committing the breaches has exhibited contrition;
·Whether the party committing the breaches has taken corrective action;
·Whether the party committing the breaches has cooperated with the enforcement authorities;
·The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
·The need for specific and general deterrence.
The court needs to be careful not to apply a formulaic approach to the imposition of penalties or attempt to extrapolate the penalties imposed in one case to the circumstances of another. Each case involving the imposition of a civil penalty warrants an idiosyncratic approach and a careful analysis of all relevant circumstances. As was stated in Australian Ophthalmic Supplies:
Penalties are not a matter of precedent. The choice of penalty must be dictated by the individual circumstances of a case, not by a line by line comparison with another case.[33]
[33] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCA 8 at [12] (Gray J).
Clearly the checklist, as enumerated above, is useful. However, it is not to be regarded as an exhaustive list of factors to be considered. The ultimate control on any sentence is that it must be proportionate to the offence committed. A court is not permitted to impose a sentence greater than is warranted by the objective circumstances of the offending.[34]
[34] Veen v R (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson, and Toohey JJ).
However, in the context of the significant interest the public has in ensuring that employees are paid their proper entitlements and are accorded the protection of the industrial safety net envisaged by the legislature, the court cannot lose sight of the importance of deterrence, both in a specific and general sense.
Penalties have to be fixed at a meaningful level, not set at a level at which their imposition, on an errant employer, can be seen as an acceptable cost of doing business for the employer. In short, penalties must hurt so that others who are considering cutting corners, so far as the payment and protection of their employees are concerned, will be deterred from doing so.
In the recent case of Australian Building and Construction Commissioner v Pattinson[35] the High Court discussed the inherent problems likely to arise when principles of retributive sentencing, relevant to the criminal law, are applied in civil penalty proceedings.
[35] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.
In this context, the High Court rejected the principle of proportionality being applied to the calculation of penalties in the civil sphere. Essentially, the High Court indicated the principle that the maximum penalty should be reserved only for the worst or most egregious examples of the applicable offence did not apply in civil penalty proceedings.
In addition, the High Court indicated that the primacy of deterrence is the objective of any civil penalty regime. As such a sentencing court, in a civil penalty matter, is required to impose a penalty which is proportionate in the sense that it strikes a reasonable balance between deterrence and what is described as oppressive severity.[36]
[36] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [41].
In this context, the essential purpose of compliance notices must be considered. As indicated above, prompt compliance with their terms can result in a win/win situation for all concerned -the industrial regulator and the public purse is not put to the expense of a hearing; an underpaid employee can be reimbursed promptly; and an errant employer is spared the bother and embarrassment of public prosecution, and is given an opportunity to learn about and rectify past failings for the good of all concerned.
DISCUSSION
Nature, circumstances and deliberateness of the contravening conduct
It cannot be doubted that both respondents were aware of their obligations arising under the compliance notice and took no action to comply with payment. Agile went into liquidation 11 months after the notice was issued. As noted above, the compliance process has not achieved its primary objective – the payment of workers their proper entitlements.
The community has been put to the expense of litigation, including preparing for a liability hearing because of the lack of cooperation from Mr Brinkies, who continues to maintain that he was a low-level functionary of the first respondent, who was merely following orders from those above him – the identity of whom he has not revealed. In my assessment, notwithstanding his denials to the contrary, Mr Brinkies must be regarded as the senior management of Agile at relevant times.
In my view, the amount of wages and the number of employees affected must be considered to be significant. Mr Prior, in his report, has indicated that there are no funds available to him to pay the various employees what is due to him. It seems improbable that Mr Brinkies will make good their loss, as it is his position that he is a person without means.
Deterrence
Deterrence has two aspects – general deterrence directed towards the community as a whole, and specific deterrence directed towards the individual concerned whose conduct is to be sanctioned. As the High Court has recently indicated, issues of deterrence must be accorded primacy in the imposition of any civil penalty.
In my view, issues of both general and personal deterrence loom large in this case. The evidence indicates that Mr Brinkies has been engaged with businesses in the past, through the Trojan group of companies, which have had a significant level of payroll. He became bankrupt in September 2019 and was disqualified by ASIC, from managing corporations at the same time.
The liquidator’s report in respect of Agile indicates that employee entitlements form a significant component of its liabilities. In these circumstances, I have grave concerns that Mr Brinkies may be contemplating resurrecting some form of business enterprise, possibly in the security industry, which will employ individuals to fulfil its contractual obligations. The evidence available indicates that he has become the director of another company, Balmoral Services Group Pty Ltd, since his disqualification period concluded.
Given these considerations, in my view, it is imperative that the court impose a penalty of a sufficient quantum to deter Mr Brinkies from engaging in future breaches of the FWA involving any employees referrable to him through the entity of Balmoral Services Group. These are also significant concerns of the FWO and provide the rationale for it to seek a pecuniary penalty in the range of 70% to 80% of the statutory maximum, notwithstanding the fact that Mr Brinkies is a first offender. I accept this submission.
In this context, it is important to note that the legislature has recently increased the maximum penalty applicable for compliance notice breaches from $8,250.00 in 2022 to $18,780.00 as of 27 February 2024. I accept that this significant increase over the two years reflects the importance government attaches to the maintenance of the effectiveness of the compliance notice regime and the societal good to be achieved by ensuring that employers comply promptly and completely with any notices served upon them in regard to paying their employees what is legally due to them.
In addition, I also accept that employees within the security industry generally, and in this case in particular, are to be regarded as vulnerable employees, given the low level of skills required to engage in it. It is also a widely dispersed industry without a high degree of union coverage. In the current matter, counsel for the FWO has pointed out that some of the workers concerned were visa holders.
Statistics provided by the FWO indicate that it received 258 disputes involving employees in the security industry in the 2021/22 financial year and issued 19 compliance notices. In my view, these considerations also heighten the need for general deterrence.
To be able to enforce the terms of modern awards, Fair Work Inspectors must be able to exercise their compliance powers effectively through investigation and then rectification. When there has been a concerted non-compliance with a compliance notice issued by a Fair Work Inspector, the court needs to indicate that such non-compliance will be regarded as a serious matter by reference to the quantum of any penalty imposed.
I accept that the failure to comply with a compliance notice has the potential to undermine the entire purpose of the relevant statutory regime. If an employer does not accept the contents of any compliance notice served upon it, the regime provides formal mechanisms of review.[37]
[37] Fair Work Ombudsman v Corporation Sun Pty Ltd [2020] FCCA 2849 at [63] (Kendall J).
In Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2), Marshall J said as follows:
It is important to ensure that the protection afforded by the Act to employees are real and effective and properly enforced. The need for general deterrence cannot be understated. Rights are a mere shell unless respected.[38]
[38] Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557 at [29] (Marshall J).
In imposing a penalty to reflect general deterrence, the court must impose fines that cannot be seen by others as the cost of doing business.[39]The role of general deterrence in fixing appropriate penalty is demonstrated by what Lander J said in Ponzio v B & P Caelli Constructions Pty Ltd,[40] namely:
In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend…. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by likeminded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty (citations omitted).
[39] Fair Work Ombudsman v Yogurberry World Square [2016] FCA 1290 at [27] (Flick J).
[40] Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 at [93] (Lander J).
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.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 22 January 2025
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