Fair Work Ombudsman v Alexjax Corp Pty Ltd
[2022] FedCFamC2G 1037
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Alexjax Corp Pty Ltd [2022] FedCFamC2G 1037
File number(s): MLG 3026 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 14 December 2022 Catchwords: INDUSTRIAL LAW – Fair Work – application for default judgment pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – applicant seeking declaration of contravention of the Fair Work Act 2009 (Cth) by reason of failure of the first respondent to comply with compliance notice – second respondent found to be a person involved, within the meaning of s 550(2) of the Fair Work Act 2009 (Cth) – declarations made – orders made requiring first respondent to comply with the requirements of the compliance notices and for payment of interest – matter listed for penalty hearing Legislation: Fair Work Act 2009 (Cth) ss 12, 90, 117, 545, 547, 550, 700, 716, 793
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.06, 4.03, 4.04, 6.01, 6.08, 13.04, 13.05
Cases cited: Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665; [2006] FCA 1427
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56
Macquarie Bank Limited v Seagle (2005) 146 FCR 400; [2005] FCA 1239
Rathner; in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626
Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 9 December 2022 Date of hearing: 9 December 2022 Place: Melbourne Solicitor for the Applicant: Fair Work Ombudsman First Respondent: Mr Hanna Second Respondent: In person ORDERS
MLG 3026 OF 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: ALEXJAX CORP PTY LTD (ACN 641 221 614)
First Respondent
JACK HANNA
Second Respondent
order made by:
JUDGE symons
DATE OF ORDER:
14 December 2022
THE COURT DECLARES THAT:
1.Upon admissions that the First Respondent and the Second Respondent are taken to have made consequent upon their non-compliance with the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) (Rules) and orders of this Court:
(a)the First Respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) on four occasions by failing to comply with four compliance notices, being one compliance notice issued on 14 May 2021 relating to Steve Robles, two compliance notices issued on 21 May 2021 relating to Alisha Gaudion and Ashlee Bottomley and one compliance notice issued on 25 June 2021 relating to Imogen Weighill (Compliance Notices);
(b)the Second Respondent was involved in, within the meaning of s 550(2) of the FW Act, each of the four contraventions by the First Respondent of s 716(5) of the FW Act and is taken to have contravened s 716(5) of the FW Act on four occasions.
THE COURT ORDERS THAT:
2.Pursuant to s 545(1) of the FW Act, the First Respondent take the steps that were required by each of the Compliance Notices within 28 days of the order by:
(a)calculating the outstanding entitlements owing in respect of each of Ms Weighill, Ms Gaudion, Ms Bottomley and Mr Robles (Employees) in accordance with the steps set out in the Compliance Notices (Underpayments);
(b)paying the identified Underpayments to the Employees;
(c)calculating relevant superannuation contributions payable on the Underpayments in accordance with the steps set out in the Compliance Notices and paying such contributions into the relevant Employee’s nominated superannuation fund; and
(d)preparing and producing to the Applicant:
(i)a schedule setting out the calculation of the Underpayments and superannuation contributions with the information required by the Compliance Notices; and
(ii)evidence that the Underpayments and the additional superannuation contributions referred to at subparagraphs (a) to (c) above have been rectified.
3.Pursuant to ss 545(1) and 547(2) of the FW Act, the First Respondent pay interest on the Underpayments in accordance with the applicable pre-judgment interest rate prescribed by the Federal Court of Australia and calculated from 24 November 2021 to the date of this order, within 28 days of this order.
4.The matter be listed for a penalty hearing on 12 May 2023 commencing at 2.15pm at the Federal Circuit and Family Court of Australia at Melbourne.
5.The Applicant file and serve affidavit evidence and written submissions on the question of penalty on or before 10 March 2023.
6.The Respondents file and serve affidavit evidence and written submissions on the question of penalty on or before 7 April 2023.
7.The Applicant file and serve any affidavit evidence and written submissions in reply on or before 21 April 2023.
8.The Applicant has liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
9.The Applicant serve a sealed copy of these orders on the Respondent on or before 22 December 2022 by sending to the email address [email protected]
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 SYMONS:
INTRODUCTION
The applicant (the FWO) applies under r 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules) for default judgment against the respondents in a proceeding the FWO has brought under the Fair Work Act 2009 (Cth) (FW Act).
The FWO claims that the first respondent (Alexjax) contravened s 716(5) of the FW Act by failing to comply with the requirements of four compliance notices issued under s 716(2) of the FW Act, and that the second respondent, Mr Hanna, was involved in Alexjax’s contraventions.
PROCEDURAL HISTORY
The FWO commenced this proceeding on 24 November 2021 by filing an application and a statement of claim. On 26 November 2021, the FWO served the application and statement of claim on Alexjax and Mr Hanna by handing both documents to Mr Hanna.[1] At the time of service, Mr Hanna was (and indeed remains) the sole director of Alexjax so that service on Alexjax complied with rule 6.08(1)(a) of the Rules.
[1] See affidavit of Kathleen Ben Yair sworn 2 December 2021 and filed 11 January 2022.
The matter was listed before me for a first directions hearing on 3 February 2022. On that date, Mr Hanna appeared and participated in the hearing. The Court made the following orders by consent (February orders):
1. The Respondents each file and serve a Notice of Address for Service by 10 February 2022.
2. Pursuant to rule 7.01 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (General Federal Law Rules) the Applicant has leave to file and serve an amended Statement of Claim by 24 February 2022.
3. Pursuant to rule 9.04 of the General Federal Law Rules, a non-lawyer (namely Mr Hanna) has leave to carry on the proceedings on behalf of, and appear for, the First Respondent.
4. The parties file and serve a Statement of Agreed Facts by 10 March 2022.
5. The Applicant file and serve any affidavit evidence and submissions in respect of penalty by 28 April 2022.
6. The Respondents file and serve any affidavit evidence and submissions in respect of penalty by 9 June 2022.
7. The Applicant file and serve any affidavit evidence in reply and submissions in reply in respect of penalty by 23 June 2022.
8. The matter is listed for a penalty hearing (with an estimate of half a day) on 11 August 2022 at 10.00 am in the Federal Circuit and Family Court of Australia.
On 3 February 2022 the FWO served the February orders on the respondents via email sent to [email protected] (email address) and reminded the respondents that they were each required to file and serve a notice of address for service by 10 February 2022.
On 22 February 2022 the FWO filed an amended statement of claim. The amendments made to the document did not result in any material change to the matters alleged against either respondent and the relief sought against each respondent remained the same.
Neither respondent complied with paragraph 1 of the February orders. The parties did not file and serve a Statement of Agreed Facts.
On 6 April 2022, I made the following orders (April orders):
1.Orders 4 to 8 of the Court’s orders dated 3 February 2022 be vacated.
2.The Respondents each file and serve a Notice of Address for Service by 13 April 2022.
3.The Respondents each file and serve by 27 April 2022:
(a) a Response to the Applicant’s Application; and
(b) any Defence to the Applicant’s Amended Statement of Claim.
4.If the Respondents comply with order 3 of these orders the Applicant file and serve any Reply by 11 May 2022.
5.If either of the Respondents do not comply with either of orders 2 and 3 of these orders:
(a)the Applicant file and serve any application in a proceeding with a supporting affidavit seeking orders against either of the Respondents who are in default, pursuant to rule 13.05 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) by 4 May 2022;
(b)the Applicant file and serve submissions in respect of the application in a proceeding by 18 May 2022;
(c)the Respondents each file and serve any affidavit evidence and submissions in respect of the application in a proceeding by 1 June 2022;
(d)the Applicant file and serve any evidence and submissions in reply by 8 June 2022; and
(e)this matter is listed for a hearing of the application for default judgment and further directions on 9 December 2022 at 10.00 am.
The FWO served the April orders on the respondents on 11 April 2022 via the email address. In that email the FWO stated that the April orders required the respondents to each file and serve a notice of address for service by 13 April 2022 and a response and any defence by 27 April 2022, and that should the respondents not comply with either of these orders, the applicant would file an application for default judgment.
Neither respondent complied with the obligations identified in paragraphs 2 or 3 of the April orders or provided any explanation to the Court concerning their failure to do so.
On 4 May 2022, the FWO filed an application in a proceeding seeking default judgment against Alexjax and Mr Hanna. That application, together with an affidavit made by Ms Laura Willoughby on 4 May 2022 (Willoughby affidavit), was served on the respondents via the email address on 4 May 2022. The FWO noted in the email that the matter was listed for hearing on 9 December 2022 at 10am. The FWO also identified the amounts that remained outstanding to the four employees pursuant to the four compliance notices. This email prompted a response from Mr Hanna on the same day in which he informed the FWO that the outstanding amounts would be paid by 30 May 2022.
On 18 May 2022, the FWO served its written submissions (filed the same date) on the respondents visa the email address. The email contained a reminder about the listing of the default hearing and informed the respondents that should they wish to file any evidence and submissions with respect to the default judgment application they must do so by 1 June 2022.
The respondents did not file any material responsive to the April orders and did not communicate with the Court or with the applicant concerning their failure to do so. When the matter was called on for hearing at 10 am on 9 December 2022 there was no appearance initially from or on behalf of either respondent. However, approximately five minutes into the hearing, the second respondent, Mr Hanna, was admitted to the hearing by telephone.
It was explained to Mr Hanna that the FWO was intending to move on its application for default judgment and I invited Mr Hanna to make submissions as to whether I should accede (or not) to that application. Mr Hanna told the Court that the first respondent’s business had been impacted significantly by the COVID-19 pandemic and had been closed for a period of approximately 290 days. It had not been eligible for government support until September 2021. In relation to this proceeding and the orders made for the respondents to file documents including a notice of address for service, response (any) defence and affidavit material, Mr Hanna told the Court that he was aware of his obligations but had been overwhelmed by the situation. As far as the FWO’s application for default judgment was concerned Mr Hanna told the Court that there was nothing really that he could say or do and that the situation “is what it is”.
The FWO moved on its application for default judgment and submitted that the participation of Mr Hanna in the hearing did not undermine the appropriateness of doing so. The FWO relied on its originating application, amended statement of claim filed on 21 February 2022, Willoughby affidavit and written submissions.
Having heard from the FWO and from Mr Hanna I am satisfied that it is appropriate to determine the FWO’s application for default judgment. In doing so I take account of the opportunities afforded to the respondents to participate in and defend the application and their failure to put before the Court any material directed at the question of default judgment or liability more generally. The matters identified by Mr Hanna might have some traction in relation to penalty but they don’t provide an explanation for the respondents’ failure to comply with the Rules and orders made by the Court. They do not suggest that the respondents have any defence to the contraventions that are the subject of the orders sought on a default basis by the FWO.
RULE 13.05(2)
Sub-rule 13.05(2) of the Rules applies to a respondent who “is in default”. Under r 13.04(2) of the Rules a respondent is in default if the respondent has not satisfied the applicant’s claims and the respondent has failed to do one or more of the things identified in r 13.04(2)(b) of the Rules. The things identified in r 13.04(2)(b) that are relevant to the application before me are the failure to give an address for service before the time for doing so has expired, the failure to file a response or defence before the time for doing so has expired, the failure to comply with an order of the Court in the proceeding, and the failure to defend the proceeding with due diligence.
When a respondent is in default, or when a respondent is absent from a hearing, the Court may make one of the orders set out in r 13.05(2) of the Rules. Relevant to the application before me is r 13.05(2)(c) which provides that the Court may:
(a)if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings – give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant.
ARE THE RESPONDENTS IN DEFAULT?
The respondents have failed to:
(a)give a notice of address for service, whether contrary to r 6.01 of the Rules or paragraph 1 of the February orders or paragraph 2 of the April orders;
(b)file and serve a response (or any defence), whether contrary to rr 4.03 and 4.04(3)(a) of the Rules or paragraph 3 of the April orders;
(c)defend the proceeding with due diligence.
I am therefore satisfied that the respondents are in default within the meaning of r 13.04(2) of the Rules.
PRINCIPLES
The principles guiding the exercise of the Court’s power in relation to default judgment and similar powers available to the Federal Court of Australia under its rules are well-settled. These principles include:
(a)First, r 13.05(2)(c) of the Rules “does not require proof of the claim by evidence, but only requires that – on the face of the statement of claim – there is a claim for the relief sought”.[2]
(b)Second, before the Court may make an order under r 13.05(2)(c) of the Rules it must be satisfied that the document, which the applicant has filed with the application, is on its face “a statement of claim”. A statement of claim is a pleading, which means it must comply with the rules of pleading.[3]
(c)Third, it follows from (b) that the statement of claim must plead at least one reasonable cause of action that supports the granting of the relief the applicant seeks in the application. More particularly, “each element of the relevant civil wrong” of which the applicant complains must be “properly and discretely pleaded in the statement of claim”.[4]
(d)Fourth, although 13.05(2)(c) of the Rules does not require proof of the claim by evidence, it is permissible for the applicant to adduce evidence that is relevant to the relief sought.[5]
(e)Finally, the Court retains a discretion not to make an order under r 13.05(2)(c) of the Rules even if the preconditions for making an order are satisfied.[6]
[2] Rathner; in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626 at [9]
[3] Under r 1.06(3) of the Rules, the rules of the Federal Court Rules 2011 (Cth) (FC Rules) identified in Schedule 1 to the Rules apply, with necessary changes, to general federal law proceedings. The FC Rules there identified include the rules of pleading.
[4] Macquarie Bank Limited v Seagle [2005] FCA 1239 at [24]
[5] Phonographic Performance Ltd v Maitra (1998) 41 IPR 225, at p 230.
[6] See the authorities decided under Order 35A of the Federal Court Rules 1979 (Cth) referred to by Flick J in Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [20]]
THE FWO’S PLEADED CASE AND CLAIM FOR RELIEF
In its amended statement of claim the FWO alleges the following:
(a)Alexjax operates a hairdressing salon business trading as “Heaven Salons” in Melbourne (the Business).
(b)Mr Hanna is (and was at relevant times) the sole director, secretary and shareholder of Alexjax; the person responsible for the operation, management and control of the Business; the person responsible for ensuring Alexjax complied with its legal obligations under the FW Act; the person responsible for corresponding with the FWO in respect of its investigation and the compliance notices; and a person whose conduct is taken to be that of Alexjax pursuant to s 793(1) of the FW Act.
(c)Between the period March 2021 to May 2021, Mr Gemayell (FWI Gemayell), Mr Rollins (FWI Rollins) and Mr Carey (FWI Carey), each Fair Work Inspectors appointed under s 700 of the FW Act, conducted an investigation into Alexjax, after which:
(i)FWI Gemayell formed a reasonable belief that:
a. Alexjax employed Mr Robles as a full-time Salon Co-ordinator Manager from 4 November 2020 to 11 February 2021;
b. The FW Act applied to Alexjax in respect of its employment of Mr Robles;
c. Mr Robles was paid an hourly rate of $35.43 per hour and was entitled to, but was not paid, an amount for accrued annual leave on termination;
d. Because of the matters in (a)-(c), Alexjax contravened s 90(2) of the FW Act by failing to pay Mr Robles accrued and untaken annual leave on termination (Robles Contravention).
(ii)FWI Rollins formed a reasonable belief that:
a. Alexjax employed Ms Gaudion as a Senior Beauty Therapist from 16 October 2020 to 13 February 2021;
b. Alexjax employed Ms Bottomley as a Senior Beauty Therapist and Salon Manager from 28 October 2020 to 13 February 2021;
c. The FW Act applied to, and the Hair and Beauty Industry Award 2010 (Award) covered and applied to Ms Gaudion and Ms Bottomley’s employment with Alexjax;
d. Ms Guadion and Ms Bottomley were each classified as a Hair and Beauty Employee Level 6 and a full-time employee within the meaning of clause 11 of the Award;
e. Ms Guadion was paid a flat hourly rate of $30.36 during her employment; did not receive any payment of wages for her last two weeks of employment; was entitled to, but was not paid, payment in lieu of notice of termination; was entitled to, but was not paid, an amount for accrued annual leave on termination;
f. Ms Bottomley was paid a flat hourly rate of $35.43 per hour during her employment; did not receive any payment of wages for her last two weeks of employment; was entitled to, but was not paid, payment in lieu of notice of termination;
g. Because of the matters in (a), (c), (d) and (e) and in respect of the employment of Ms Gaudion, Alexjax contravened clause 17 of the Award (minimum wages), s 117(2) of the FW Act in respect of payment in lieu of notice of termination and s 90(2) of the FW Act and clause 33.3 of the Award in respect of accrued and untaken annual leave on termination (Gaudion Contraventions);
h. Because of the matters in (b), (c), (d) and (f) and in respect of the employment of Ms Bottomley, Alexjax contravened clause 17 of the Award (minimum wages) and s 117(2) of the FW Act in respect of payment in lieu of notice of termination (Bottomley Contraventions).
(iii)FWI Carey formed a reasonable belief that:
a. Alexjax employed Ms Weighill as a Senior Stylist from 28 October 2020 to 12 February 2021;
b. The FW Act applied to and the Award covered and applied to Ms Weighill’s employment with Alexjax;
c. Ms Weighill was classified as a Hair and Beauty Employee Level 6 and a full-time employee within the meaning of clause 11 of the Award;
d. Ms Weighill was paid a flat hourly rate of $23.79 during her employment; did not receive any payment of wages for work performed between 5 and 12 February 2021 inclusive; regularly worked Saturday; was entitled to, but was not paid, an amount for accrued annual leave on termination;
e. Because of the matters in (a)-(d), Alexjax contravened clause 17 of the Award (minimum wages for the period 5 to 12 February inclusive); clause 31.2(c) of the Award (Saturday penalty rates) and s 90(2) of the FW Act by failing to pay accrued and untaken annual leave on termination (Weighill Contraventions).
(d)On 14 May 2021, FWI Gemayell gave Alexjax a compliance notice pursuant to s 716(2) of the FW Act in relation to the Robles Contravention (Robles Compliance Notice) in which Alexjax was required to do the following by 16 June 2021 (Specified Action);
(i)Calculate the number of hours of annual leave that were accrued to Mr Robles when his employment ended;
(ii)Calculate the amount Alexjax should have paid to Mr Robles when the employment ended;
(iii)Make a payment to Mr Robles of the amounts referred to in (ii); and
(iv)Produce reasonable evidence of compliance with the requirements of the Robles Compliance Notice.
(e)On 21 May 2021, FWI Rollins gave Alexjax a compliance notice pursuant to s 716(2) of the FW Act in relation to the Guadion Contraventions (Guadion Compliance Notice) and the Bottomley Contraventions (Bottomley Compliance Notice) in which Alexjax was required to do the following by 30 June 2021 (Specified Action):
(i)in respect of clause 17 of the Award:
a.identify the number of hours Ms Guadion and Ms Bottomley worked during their respective employment periods in respect of which the minimum rates were required to be paid under the Award;
b.identify the amount Alexjax paid to Ms Guadion and Ms Bottomley during their respective employment periods in respect of the minimum rates;
c.calculate the amount Alexjax should have paid Ms Guadion and Ms Bottomley during their respective employment;
d.make a payment to Ms Guadion and Ms Bottomely of the difference between the amounts referred to in subparagraphs (c) and (b) above;
(ii)in respect of s 117(2) of the FW Act:
a.identify the wages Ms Gaudion and Ms Bottomley were entitled to be paid, equal to the period of notice they were entitled to receive for their respective employment periods;
b.identify the amounts Alexjax paid Ms Gaudion and Ms Bottomley for payment in lieu of notice;
c.calculate the amount Alexjax should have paid Ms Gaudion and Ms Bottomley, in respect of payment in lieu of notice;
d.make a payment to Ms Gaudion and to Ms Bottomley (as the case requires) of the difference between the amounts referred to in subparagraphs (c) and (b) above;
(iii)in respect of s 90(2) of the FW Act:
a.identify the number of hours of accrued but untaken annual leave Ms Gaudion had at the time her employment period ended;
b.identify the amount Alexjax paid to Ms Gaudion in respect of accrued yet untaken annual leave entitlements at the time her employment ended;
c.calculate the amount Alexjax should have paid to Ms Gaudion, in respect of accrued yet untaken annual leave at the time her employment ended;
d.make a payment to Ms Gaudion of the difference between the amount referred to in subparagraphs (c) and (b) above.
(f)Calculate and pay the additional superannuation contributions required by clause 24.2 of the Award in respect of the amounts paid to Ms Gaudion and Ms Bottomley in accordance with the Gaudion Compliance Notice and the Bottomley Compliance Notice;
(g)Produce reasonable evidence of compliance with the requirements of the Gaudion Compliance Notice and the Bottomley Compliance Notice.
(h)On 25 June 2021, FWI Carey gave Alexjax a compliance notice pursuant to s 716(2) of the FW Act in relation to the Weighill Contraventions (Weighill Compliance Notice) in which Alexjax was required to do the following by 23 July (Specified Action):
(i)Identify Ms Weighill’s classification under the Award and her employment status;
(ii)Identify the number of hours worked by Ms Weighill during Ms Weighill’s employment period in respect of which she was entitled to be paid entitlements under the FW Act or the Award;
(iii)Identify the amount Alexjax paid to Ms Weighill during her employment period in respect of her entitlements under the FW Act or the Award;
(iv)Calculate the amounts Alexjax should have paid to Ms Weighill during her employment period in respect of her entitlements under the FW Act or the Award;
(v)make a payment to Ms Weighill of the difference between the amount referred to in subparagraphs (iv) and (iii) above.
(vi)Calculate and pay to Ms Weighill the additional superannuation contributions required by clause 24.2 of the Award in respect of the amounts paid to Ms Weighill pursuant to the Weighill Compliance Notice.
(vii)Produce reasonable evidence of compliance with the requirements of the Weighill Compliance Notice.
(i)Alexjax failed to take any of the Specified Action as required by the Robles Compliance Notice, the Guadion Compliance Notice, the Bottomley Compliance Notice and the Weighill Compliance Notice and, therefore, contravened s 716(5) of the FW Act.
(j)Given the matters referred to in 21(b), Mr Hanna had actual knowledge of each of the Compliance Notices and of Alexjax’s failure to comply with the Compliance Notices and, for those reasons, was a person involved, within the meaning of s 550(2) of the FW Act, in Alexjax’s contraventions of s 716(5) of the FW Act.
The FWO seeks the following relief:
(a)Declarations that Alexjax contravened s 716(5) of the FW Act and that Mr Hanna was a person involved in Alexjax’s contraventions of s 716(5) of the FW Act;
(b)Orders pursuant to s 545(1) of the FW Act that Alexjax take the steps the Compliance Notices required it to undertake;
(c)Orders pursuant to s 547(2) of the FW Act that Alexjax pay interest on the amounts outstanding in respect of each of Mr Robles, Ms Gaudion, Ms Bottomley and Ms Weighill.
TO WHAT RELIEF IS THE FWO ENTITLED?
The statement of claim alleges a cause of action based on four contraventions of s 716(5) of the FW Act, which provides that a “person must not fail to comply with a notice given under this section”. The “notice” referred to in s 716(5) is the notice which s 716(2) of the FW Act authorises “an inspector” to issue. “Inspector” is defined in s 12 of the FW Act as a “Fair Work Inspector”, which, in turn, is defined in s 12 of the FW Act to mean (relevantly) a person appointed as a Fair Work Inspector under s 700 of the FW Act. Subsection 716(2) provides for the giving of a notice in the circumstances identified in s 716(1) of the FW Act, namely, where an inspector reasonably believes that a person has contravened, among other things, a provision of the National Employment Standards (NES) or a term of a modern award. The notice that s 716(2) of the FW Act authorised an inspector to give is one which requires the person whom the inspector reasonably believes has contravened (among other things) a provision of the NES or a term of a modern award to take specified action “to remedy the direct effects of the contravention referred to in subsection (1)”.
I am satisfied that the amended statement of claim filed in this matter and upon which the applicant relies complies with the rules of pleading and properly pleads a cause of action that supports the granting of relief. In particular, I am satisfied that the facts alleged in the amended statement of claim establish that Alexjax contravened s 716(5) of the FW Act, and that Mr Hanna was a person involved, within the meaning of s 550(2) of the FW Act, in Alexjax’s contraventions.
SHOULD DECLARATIONS BE MADE?
It is not in doubt that this Court has a wide discretion to make declarations, including in circumstances where due to their default, the respondents are deemed to have made admissions. In this respect, there is no requirement, as there once was, for there to be a proper contradictor before declaratory relief can be granted. The requirement for a contradictor is met if there is a party who had an interest to oppose the declaratory relief that was being sought.[7] However, it has been recognised that in exercising appropriate caution when considering declaratory relief, the particular characteristics of an application for default judgment should be borne in mind. In particular, default judgment is given on the basis of the claim as pleaded by the applicant and in the absence of a defence or contradictory evidence. Accordingly, it is appropriate to make clear, as the FWO has proposed, that there has been no adjudication on the merits of the applicant’s claims by including wording in the declaration to the effect that the declarations are made “upon admissions which the respondents in question are taken to have made consequent upon their non-compliance with the requirements of the rules of Court”, as suggested by Kiefel J (as her Honour then was), in Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2006] FCA 1427 at [59].
[7] Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56 at [30] per Greenwood, Logan and Yates JJ.
Although there is some doubt in my mind as to whether, in fact, declarations serve the broad-ranging education and cautionary purpose that the FWO attributes to them (that presupposes that meaningful numbers of employers read and understand the import of judgments and orders made and media releases promulgated by the FWO), I am satisfied that this is an appropriate case for declaratory relief, if for no other reason than to mark the Court’s disapproval of the contravening conduct.
ORDERS REQUIRING ALEXJAX TO COMPLY WITH THE REQUIREMENTS OF THE COMPLIANCE NOTICES AND FOR PAYMENT OF INTEREST
I am satisfied that it is appropriate to make orders that Alexjax take the steps that were required of it by the Robles, Gaudion, Bottomley and Weighill Compliance Notices within 28 days and that Alexjax pay interest on the amount of any underpayment that remains owing to each of the affected employee and any payable superannuation contribution. In this regard, I note that Mr Hanna told the Court at the hearing on 9 December 2022 that the outstanding Entitlements would be paid within four to five weeks. This time-frame is consistent with the operation of the orders.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 14 December 2022
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