Fair Work Ombudsman v Anastasio

Case [2023] FedCFamC2G 827


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Anastasio [2023] FedCFamC2G 827  

File number(s): ADG 256 of 2022
Judgment of: JUDGE LUCEV
Date of judgment: 11 September 2023
Catchwords: INDUSTRIAL LAW – Contraventions – failure to comply with compliance notice – agreed statement of facts and admissions – agreed penalty – relevant principles concerning agreed penalty – factors for assessment of whether agreed penalty proposed is appropriate.  
Legislation:

Crimes Act 1914 (Cth) s 4AA

Fair Work Act 2009 (Cth) ss 12, 539, 546, 716

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Another [2018] HCA 3; (2018) 262 CLR 157; (2018) 92 ALJR 219; (2018) 273 IR 211; (2018) 351 ALR 190; (2018) 70 AILR 102-917

Australian Building and Construction Commissioner v Pattinson & Anor [2022] HCA 13; (2022) 274 CLR 450; (2022) 96 ALJR 426; (2022) 314 IR 301; (2022) 399 ALR 599

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd [2002] FCA 619

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560; (2008) 246 ALR 35; (2008) 60 AILR 100-809

Fair Work Ombudsman v 3 Rundle Mall Pty Ltd [2022] FedCFamC2G 354

Fair Work Ombudsman v ADADN Pty Ltd [2021] FCCA 756

Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128

Fair Work Ombudsman v Al Hilfi [2016] FCA 193

Fair Work Ombudsman v Althaus Homes Pty Ltd [2021] FCCA 126

Fair Work Ombudsman v Hiyi Pty Ltd & Ors [2016] FCCA 1634

Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655

Fair Work Ombudsman v Mai Pty Ltd [2016] FCCA 1481

Fair Work Ombudsman v Metro Northern Enterprises Pty Ltd [2013] FCCA 1323

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301

Fair Work Ombudsman v Pioneer Personnel Pty Ltd [2017] FCCA 3223

Fair Work Ombudsman v Rum Runner Pty Ltd & Anor [2018] FCCA 1129

Fair Work Ombudsman v Soma Kitchen Pty Ltd & Anor (No 2) [2020] FCCA 2583

Fair Work Ombudsman v Syndicate Group Pty Ltd [2015] FCCA 2847

Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492

Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290

Jordan v Mornington Inn Pty Ltd [2007] FCA 1384; (2007) 116 IR 33; (2007) 60 AILR 100-744

Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14

Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; [2004] ATPR 41-993

Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383; (2008) 171 IR 455; (2008) 247 ALR 714

Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 492

Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65; (2007) 158 FCR 543; (2007) 162 IR 444; (2007) 59 AILR…

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AGLC
Fair Work Ombudsman v Anastasio [2023] FedCFamC2G 827
Case
[2023] FedCFamC2G 827
Decision Date

CaseChat Overview and Summary

The case of Fair Work Ombudsman v Anastasio involved a dispute regarding penalties for contravention of the Fair Work Act 2009 (Cth) by the respondent, Antonio Anastasio. Anastasio, a sole trader operating under the business name SA Dents & Detailing, admitted to failing to comply with a compliance notice issued by a Fair Work Inspector, Marie-Anne Higgins, which required him to pay his employees their outstanding wages and loadings as per the Vehicle Repair, Services and Retail Award 2020. The primary issue before the Court was whether the agreed penalty of $3,330 was appropriate. This involved considering the principles concerning the approach to be taken by the Court where an agreed penalty is proposed and assessing whether the penalty proposed was appropriate having regard to relevant considerations.

The Court found that the agreed penalty of $3,330 was 50% of the maximum penalty. The Court was satisfied that the penalty was appropriate and sufficient to operate as effective deterrence, both general and specific. The penalty was also within the permissible range of likely possible penalties had the matter not been agreed and was a penalty to which the Fair Work Ombudsman as a regulatory body was prepared to agree. The Court concluded that the agreed penalty was appropriate and made the consent declaration and orders on 14 August 2023.

The Court's decision was based on the principles concerning the approach to be taken by the Court where an agreed penalty is proposed, as well as the relevant considerations in relation to penalty. The Court found that the agreed penalty of $3,330 was appropriate and made the consent declaration and orders on 14 August 2023. The Court also noted that the agreed penalty was within the permissible range of likely possible penalties had the matter not been agreed and was a penalty to which the Fair Work Ombudsman as a regulatory body was prepared to agree. The Court concluded that the agreed penalty was appropriate and sufficient to operate as effective deterrence, both general and specific.

Orders

Orders of the court

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Background

Background to the litigation

The primary issue for the Court is whether the agreed penalties are appropriate penalties. This involves:(a)a consideration of the principles concerning the approach to be taken by the Court where an agreed penalty is proposed; and(b)an assessment of whether the penalty proposed is appropriate having regard to relevant considerations.STATEMENT OF AGREED FACTS A Statement of Agreed Facts (“SOAF”) was filed on 4 April 2023, and is in the following terms:A.This Statement of Agreed Facts (SOAF) is made by the Applicant, the Fair Work Ombudsman, and the Respondent, Antonio Anastasio, for the purposes of s 191 of the Evidence Act 1995 (Cth).B.The Respondent admits that it contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with a compliance notice dated 21 February 2022 issued by Fair Work Inspector (FWI) Marie-Anne Higgins (FWI Higgins) pursuant to s 716(2) of the FW Act.A. PARTIESThe Applicant 1.The Applicant has standing and authority to bring these proceedings and seek orders under section 539 of the FW Act.The Respondent2. The Respondent is and was at all relevant times:(a) a natural person capable of being sued;(b)a “national system employer” within the meaning of section 14 of the FW Act, as extended by section 30D(1) of the FW Act;(c)a sole trader holding the Australian Business Number … [number deleted] and operating a business involving motor vehicle repair and detailing services under the registered business name ‘SA Dents & Detailing’ (Business);(d)operating the Business from 4 Bridge Road, Payneham in the State of South Australia (Business Address);(e)by reason of the matters pleaded in paragraphs 2(a), 2(b) and 2(c) above, covered by the FW Act in respect of his employees.B. ADMITTED CONTRAVENTION OF S 716(5) OF THE FW ActBackground3.FWI Higgins is and was at all relevant times a FWI appointed by the Applicant under section 700 of the FW Act.4.In or around February 2021, FWI Higgins commenced an investigation into the Respondent in respect of Mr Ross Hicks (Mr Hicks) and Mr Ngor Mapor (Mr Mapor), together (the Employees);5.Based on the information obtained during the investigation, FWI Higgins formed a belief that:(a)the Vehicle Repair, Services and Retail Award 2020 (Award) covered and applied to the Respondent in respect of the Employees;(b)between 12 October 2020 and 15 January 2021 (Employment Period), the respondent employed the Employees as:(i)Vehicle Industry Repair Services & Retail (RS&R) employees, Level 1 (entry) R1 classification, as defined in Schedule A of the Award, performing car detailing duties; and(ii) casual employees:(A)for Mr Hicks, between 12 October 2020 and 18 November 2020;(B)for Mr Mapor, between 8 January 2021 and 15 January 2021; and(c)during the Employment Period, the Respondent failed to pay the Employees the minimum hourly rate of pay and the applicable loading for the work performed (Casual Minimum Rates Entitlements), as required under the Award.6.By reason of the matters pleaded in paragraph 5 above, FWI Higgins formed a reasonable belief, within the meaning of section 716(1)(b) of the FW Act, that by failing to pay the Casual Minimum Rates Entitlements the Respondent contravened the following terms of the Award in respect of the Employees:(a) the casual minimum rates clause; and(b) the casual loading clause,(together, the Contraventions).Compliance Notice7.On or about 21 February 2022, FWI Higgins gave a notice to the Respondent pursuant to section 716(2) of the FW Act in respect of the Contraventions (Compliance Notice), by sending it to the Business Address by express post.8.On or about 22 February 2022, FWI Higgins sent an electronic copy of the Compliance Notice to the email address … [email address deleted], being the email address of the Respondent from which the Respondent had corresponded with the Applicant during the Investigation (Respondent’s Email Address).9.Pursuant to section 716(2) of the FW Act, the Compliance Notice required the Respondent to:(a)take the following actions by 28 March 2022, in respect of the Employees, to remedy the direct effects of the Contraventions (Specified Action):(i)calculate the full amount of wages owed to the Employees for the Employment Period in respect of the Contraventions; and(ii)make full payment to the Employees in respect of their outstanding Casual Minimum Rates Entitlements; and(b)produce reasonable evidence to the Applicant of the Respondent’s compliance with the Compliance Notice, by 4 April 2022, by preparing and producing a record of calculations and payments and evidence that the amounts owed, including additional superannuation contributions, had been paid to the Employees and their chosen superannuation funds.10.The Compliance Notice met the requirements of section 716(3) of the FW Act.Failure to comply with the Compliance Notice11.The Respondent failed to:(a)take the specified action set out in the Compliance Notice by 28 March 2022, or at all prior to the commencement of this proceeding; and(b)produce to the Applicant reasonable evidence of compliance with the Compliance Notice by 4 April 2022, or at all prior to the commencement of this proceeding.12. By reason of the matters agreed in paragraphs 3 to 11 above, the Respondent:(a) failed to comply with the Compliance Notice; and(b) contravened section 716(5) of the FW Act.C. AGREED RELIEF13.The parties seek the declarations set out below:(a)a declaration that the Respondent contravened s716(5) of the FW Act by failing to comply with the Compliance Notice issued on 21 February 2022.14. The Parties agree to the following orders:(a)pursuant to section 545(2) of the FW Act, the Respondent take the steps that were required by the Compliance Notice within 28 days from the date of this order, by:(i)calculating and paying to the Employees the outstanding amounts the Respondent was required by the Compliance Notice to pay (Outstanding Amounts); and(ii)preparing and producing to the Applicant a schedule outlining the Outstanding Amounts and providing proof that these amounts have been paid.(b)pursuant to section 547(2) of the FW Act, the Respondent pay interest on the Outstanding Amounts to the Employees, pursuant to paragraph 14(a)(i) above, at the applicable pre-judgment interest rate to the Employees within 28 days of this order;(c)pursuant to section 546(1) of the FW Act the Respondent pay a pecuniary penalty to the Commonwealth for his contravention set out at paragraph 13(a) above, within 28 days of this order;(d)the Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with; and(e) such further orders as the Court considers appropriate.RELEVANT PRINCIPLES CONCERNING AGREED PENALTY

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The agreed penalty in this case ($3,330) is 50% of the maximum penalty. Having regard to all of the circumstances and the considerations in relation to penalty as set out above the Court is satisfied that that penalty is appropriate, and sufficient to operate to give rise to effective deterrence, both general and specific. It is also within a permissible range of likely possible penalties had the matter not been agreed, and is also a penalty to which the FWO as a regulatory body was prepared to agree.CONCLUSION For the above reasons the Court was satisfied that it was appropriate to make the declarations and orders made on 14 August 2023, which are set out at [4] above.

Ratio Decidendi

Legal Principle Established

The following are the Reasons for Judgment referred to in order 2 of the orders made on 11 August 2023.CONSENT DECLARATION AND ORDERS MADE ON 14 AUGUST 2023 On 14 August 2023 the parties provided to the Court, and the Court made, a consent declaration and consent orders as follows:BY CONSENT, THE COURT DECLARES THAT: 1. The Respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice issued on 21 February 2022 (Compliance Notice). BY CONSENT, THE COURT ORDERS THAT: 2. Pursuant to s 545(1) of the FW Act, the Respondent, within 60 days of this order: (a) pay to the Employees the outstanding amounts the Respondent was required by the Compliance Notice to pay (agreed to be $1,110.32 to Mr Ngor Mapor and $1,987.28 to Mr Ross Hicks) (Outstanding Amounts); and (b) prepare and produce to the Applicant a schedule outlining the Outstanding Amounts and providing proof that these amounts have been paid. 3. Pursuant to section 547(2) of the FW Act, the Respondent, within 60 days of this order, pay interest on the Outstanding Amounts to the Employees at the applicable prejudgment interest rate (agreed to be $85.11 to Mr Ngor Mapor and $128.90 to Mr Ross Hicks). 4. Pursuant to s 546(1) of the FW Act, that the Respondent pay a pecuniary penalty to the Applicant of $3,330 for the declared contravention in paragraph 1 above within 180 days of this order. 5. The Applicant has liberty to apply on seven days' notice. The consent declaration and consent orders were prefaced by a “Penal Notice” which it is unnecessary to set out for present purposes.ISSUES The primary issue for the Court is whether the agreed penalties are appropriate penalties. This involves:(a)a consideration of the principles concerning the approach to be taken by the Court where an agreed penalty is proposed; and(b)an assessment of whether the penalty proposed is appropriate having regard to relevant considerations.STATEMENT OF AGREED FACTS A Statement of Agreed Facts (“SOAF”) was filed on 4 April 2023, and is in the following terms:A.This Statement of Agreed Facts (SOAF) is made by the Applicant, the Fair Work Ombudsman, and the Respondent, Antonio Anastasio, for the purposes of s 191 of the Evidence Act 1995 (Cth).B.The Respondent admits that it contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with a compliance notice dated 21 February 2022 issued by Fair Work Inspector (FWI) Marie-Anne Higgins (FWI Higgins) pursuant to s 716(2) of the FW Act.A. PARTIESThe Applicant 1.The Applicant has standing and authority to bring these proceedings and seek orders under section 539 of the FW Act.The Respondent2. The Respondent is and was at all relevant times:(a) a natural person capable of being sued;(b)a “national system employer” within the meaning of section 14 of the FW Act, as extended by section 30D(1) of the FW Act;(c)a sole trader holding the Australian Business Number … [number deleted] and operating a business involving motor vehicle repair and detailing services under the registered business name ‘SA Dents & Detailing’ (Business);(d)operating the Business from 4 Bridge Road, Payneham in the State of South Australia (Business Address);(e)by reason of the matters pleaded in paragraphs 2(a), 2(b) and 2(c) above, covered by the FW Act in respect of his employees.B. ADMITTED CONTRAVENTION OF S 716(5) OF THE FW ActBackground3.FWI Higgins is and was at all relevant times a FWI appointed by the Applicant under section 700 of the FW Act.4.In or around February 2021, FWI Higgins commenced an investigation into the Respondent in respect of Mr Ross Hicks (Mr Hicks) and Mr Ngor Mapor (Mr Mapor), together (the Employees);5.Based on the information obtained during the investigation, FWI Higgins formed a belief that:(a)the Vehicle Repair, Services and Retail Award 2020 (Award) covered and applied to the Respondent in respect of the Employees;(b)between 12 October 2020 and 15 January 2021 (Employment Period), the respondent employed the Employees as:(i)Vehicle Industry Repair Services & Retail (RS&R) employees, Level 1 (entry) R1 classification, as defined in Schedule A of the Award, performing car detailing duties; and(ii) casual employees:(A)for Mr Hicks, between 12 October 2020 and 18 November 2020;(B)for Mr Mapor, between 8 January 2021 and 15 January 2021; and(c)during the Employment Period, the Respondent failed to pay the Employees the minimum hourly rate of pay and the applicable loading for the work performed (Casual Minimum Rates Entitlements), as required under the Award.6.By reason of the matters pleaded in paragraph 5 above, FWI Higgins formed a reasonable belief, within the meaning of section 716(1)(b) of the FW Act, that by failing to pay the Casual Minimum Rates Entitlements the Respondent contravened the following terms of the Award in respect of the Employees:(a) the casual minimum rates clause; and(b) the casual loading clause,(together, the Contraventions).Compliance Notice7.On or about 21 February 2022, FWI Higgins gave a notice to the Respondent pursuant to section 716(2) of the FW Act in respect of the Contraventions (Compliance Notice), by sending it to the Business Address by express post.8.On or about 22 February 2022, FWI Higgins sent an electronic copy of the Compliance Notice to the email address … [email address deleted], being the email address of the Respondent from which the Respondent had corresponded with the Applicant during the Investigation (Respondent’s Email Address).9.Pursuant to section 716(2) of the FW Act, the Compliance Notice required the Respondent to:(a)take the following actions by 28 March 2022, in respect of the Employees, to remedy the direct effects of the Contraventions (Specified Action):(i)calculate the full amount of wages owed to the Employees for the Employment Period in respect of the Contraventions; and(ii)make full payment to the Employees in respect of their outstanding Casual Minimum Rates Entitlements; and(b)produce reasonable evidence to the Applicant of the Respondent’s compliance with the Compliance Notice, by 4 April 2022, by preparing and producing a record of calculations and payments and evidence that the amounts owed, including additional superannuation contributions, had been paid to the Employees and their chosen superannuation funds.10.The Compliance Notice met the requirements of section 716(3) of the FW Act.Failure to comply with the Compliance Notice11.The Respondent failed to:(a)take the specified action set out in the Compliance Notice by 28 March 2022, or at all prior to the commencement of this proceeding; and(b)produce to the Applicant reasonable evidence of compliance with the Compliance Notice by 4 April 2022, or at all prior to the commencement of this proceeding.12. By reason of the matters agreed in paragraphs 3 to 11 above, the Respondent:(a) failed to comply with the Compliance Notice; and(b) contravened section 716(5) of the FW Act.C. AGREED RELIEF13.The parties seek the declarations set out below:(a)a declaration that the Respondent contravened s716(5) of the FW Act by failing to comply with the Compliance Notice issued on 21 February 2022.14. The Parties agree to the following orders:(a)pursuant to section 545(2) of the FW Act, the Respondent take the steps that were required by the Compliance Notice within 28 days from the date of this order, by:(i)calculating and paying to the Employees the outstanding amounts the Respondent was required by the Compliance Notice to pay (Outstanding Amounts); and(ii)preparing and producing to the Applicant a schedule outlining the Outstanding Amounts and providing proof that these amounts have been paid.(b)pursuant to section 547(2) of the FW Act, the Respondent pay interest on the Outstanding Amounts to the Employees, pursuant to paragraph 14(a)(i) above, at the applicable pre-judgment interest rate to the Employees within 28 days of this order;(c)pursuant to section 546(1) of the FW Act the Respondent pay a pecuniary penalty to the Commonwealth for his contravention set out at paragraph 13(a) above, within 28 days of this order;(d)the Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with; and(e) such further orders as the Court considers appropriate.RELEVANT PRINCIPLES CONCERNING AGREED PENALTY