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Fair Work Ombudsman v ASGBRIS Pty Ltd

Fair Work Ombudsman v ASGBRIS Pty Ltd

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Case Copied 13 March 2020 34 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v ASGBRIS PTY LTD & ANOR

[2020] FCCA 553

Catchwords:
INDUSTRIAL LAW – Agreed failure by the First Respondent to comply with Compliance Notice issued in accordance with section 716 of the Fair Work Act 2009 (Cth) – Agreed involvement by the Second Respondent in the First Respondent’s failure to comply with the Compliance Notice – Appropriate civil penalties to be paid by the Respondents pursuant to section 546 of the Fair Work Act 2009 (Cth).

Legislation:

Fair Work Act 2009 (Cth), ss.539, 546, 550, 716

Crimes Act 1914 (Cth), s.4AA

Electrical, Electronic and Communications Contracting Award 2010, cl.26.1

Cases cited:

Fair Work Ombudsman v NSH North Pty Ltd [2017] FCA 1301
Carr v CEPU [2007] FMCA 1526
Fair Work Ombudsman v Nobrace Centre Pty Limited & Anor (No 2) (Nobrace) [2019] FCCA 2144
Fair Work Ombudsman v Blu Hornsby Pty Limited [2016] FCCA 1150

Re Trade Practices Commission v CSR Ltd (1991) ATPR 41-076

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

ASGBRIS PTY LTD ACN 614 106 811

Second Respondent:

STEPHEN FRANCIS WARD

File Number:

BRG 798 of 2019

Judgment of:

Judge Tonkin

Hearing date:

21 February 2020

Date of Last Submission:

21 February 2020

Delivered at:

Brisbane

Delivered on:

13 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr Vincent

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

Solicitors for the Respondents:

Mr Carrick of Wheldon & Associates

ORDERS

IT IS DECLARED THAT:

ASGBRIS contravened s.716 (5) of the Fair Work Act 2009 (Cth) by failing to comply with the Compliance Notice issued on 23 July 2019; and
Mr Stephen Ward was involved within the meaning of section 550(2) of the Fair Work Act 2009 (Cth) in ASGBRIS’ contravention of s.716 (5) of the Fair Work Act 2009 (Cth) by failing to comply with the Compliance Notice issued on 23 July 2019.

THE COURT ORDERS:

Pursuant to s. 546(1) of the Fair Work Act 2009 (Cth) ASGBRIS pay a pecuniary penalty of $7087.50 to the Consolidated Revenue Fund of the Commonwealth for committing the contravention set out in paragraph 1 above within 28 days of the date of this order.
Pursuant to s. 546(1) of the Fair Work Act 2009 (Cth) Stephen Ward pay a pecuniary penalty of $1417.50 to the Consolidated Revenue Fund of the Commonwealth for his involvement within the meaning of section 550 of the Fair Work Act 2009 (Cth) in ASGBRIS’ contravention as set out in paragraph 1 above within 28 days of the date of this order.
An order that the Fair Work Ombudsman have liberty to apply on 7 days’ notice in the event that any of the preceding orders are not complied with.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 798 of 2019

FAIR WORK OMBUDSMAN

Applicant

And

ASGBRIS PTY LTD ACN 614 106 811

First Respondent

STEPHEN FRANCIS WARD

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

Introduction

The First Respondent (“ASGBRIS”) operates a company selling and installing security…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 553
Decision Date: 13 March 2020

CaseChat Overview and Summary

The Fair Work Ombudsman brought proceedings against ASGBRIS Pty Ltd (the First Respondent) and Mr. Anthony Sorbello (the Second Respondent) in the Federal Circuit and Family Court of Australia. The dispute concerned ASGBRIS Pty Ltd's admitted failure to comply with a Compliance Notice issued under section 716 of the *Fair Work Act 2009* (Cth), and Mr. Sorbello's admitted involvement in that failure. The Ombudsman sought the imposition of civil penalties on both respondents under section 546 of the Act.

The court was required to determine the appropriate civil penalties to be imposed on ASGBRIS Pty Ltd and Mr. Sorbello for their contraventions of the Fair Work Act. This involved assessing the seriousness of the contraventions, the need for deterrence, and any mitigating or aggravating factors.

Judge Tonkin found that ASGBRIS Pty Ltd had contravened the Compliance Notice by failing to provide the requested information and documents. Mr. Sorbello was found to have been involved in this contravention. In determining the penalties, the court considered the objective seriousness of the failure to comply with a notice issued under the Act, which is designed to facilitate the enforcement of workplace laws. The court also took into account the respondents' admissions, their cooperation with the Fair Work Ombudsman's investigation, and the fact that the contravention was not deliberate or for personal gain.

Ultimately, Judge Tonkin ordered ASGBRIS Pty Ltd to pay a penalty of $1,500 and Mr. Sorbello to pay a penalty of $300.

Orders