Fair Work Ombudsman v BSW Electrical Pty Ltd - [2024] FedCFamC2G 1214

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v BSW Electrical Pty Ltd [2024] FedCFamC2G 1214

File number(s): MLG 678 of 2024

Judgment of: JUDGE MANSINI

Date of judgment: 14 November 2024

Catchwords: FAIR WORK - Application for pecuniary penalties – where Respondent admitted to contravention of s.716 of the Fair Work Act 2009 (Cth) by failure to comply with statutory compliance notice and penalty hearing proceeded on default of Respondent – consideration of relevant factors – penalties determined.

Legislation:
Corporations Act 2021 (Cth) ss.12, 14, 109X

Crimes Act (Cth) 1914 s.4AA

Fair Work Act 2009 (Cth) ss.90, 539, 545, 546, 687, 701, 716

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r.13.06

Cases cited:
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

CFMMEU v ABCC [2018] FCAFC 97

Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482

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

Division: Division 2 General Federal Law

Number of paragraphs: 54

Date of hearing: 10 September 2024

Place: Melbourne

Solicitor for the Applicant: Fair Work Ombudsman

The Respondent: No appearance
ORDERS

MLG 678 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
BSW ELECTRICAL SERVICES PTY LTD

Respondent

ORDER MADE BY:

JUDGE MANSINI

DATE OF ORDER:

14 NOVEMBER 2024

THE COURT DECLARES THAT:
1.Upon the admissions of BSW Electrical Services Pty Ltd (the Respondent), the Respondent contravened s.716(5) of the Fair Work Act 2009 (Cth) by its failure to comply with the statutory compliance notice dated 24 February 2023.

THE COURT ORDERS THAT:
1.Pursuant to s.546(1) of the Act, the Respondent pay a pecuniary penalty of $6,400 to the Commonwealth of Australia for the contravention declared at 1 above, within 60 days of this order.
2.The Applicant has liberty to apply on 7 days’ notice, in the event that the preceding order is 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 Mansini
IN SUMMARY

This is an application by the Fair Work Ombudsman (FWO) regarding an electrical contracting business that did not comply with a statutory compliance notice.
The notice was issued following investigation of a report by a former employee which led the inspector to believe that there had been underpayments in contravention of the minimum conditions in the legislation and modern award.
The FWO asked the Court to make declarations of the admitted contraventions of the Fair Work Act 2009 (Cth) (the Act) by BSW Electrical Services…

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: [2024] FedCFamC2G 1214
Decision Date: 14 November 2024

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought an application against BSW Electrical Pty Ltd (BSW) for pecuniary penalties due to BSW’s contravention of section 716 of the Fair Work Act 2009. BSW admitted to failing to comply with a statutory compliance notice, leading to the penalty hearing. The Federal Circuit Court was tasked with determining the appropriate penalty.

The court was required to consider the seriousness of the breach, the degree of culpability, the culpability of the individual or corporation, and the need for deterrence. BSW had admitted to the contravention without dispute, which influenced the assessment of culpability. The court also considered the company's history of compliance and efforts to rectify the contravention post-notice.

After evaluating the relevant factors, the court concluded that a penalty of $6,400 was appropriate. This amount was deemed sufficient to achieve the objectives of punishment and deterrence without being excessively punitive. The court found that the penalty struck a reasonable balance between these objectives and the nature of the contravention.

The court ordered BSW to pay the penalty of $6,400 to the Commonwealth of Australia within 60 days. The decision included declarations affirming the contravention and the court's jurisdiction to impose the penalty.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, this is a proportionate response which strikes a reasonable balance between oppressive severity and the need for deterrence in this particular case. CONCLUSION For the above reasons, I will make declarations and order payment of the pecuniary penalty in the amount of $6,400 to the Commonwealth of Australia be made within 60 days.

Ratio Decidendi

Legal Principle Established

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File number(s):	MLG 678 of 2024
Judgment of:	JUDGE MANSINI
Date of judgment:	14 November 2024
Catchwords:	FAIR WORK - Application for pecuniary penalties – where Respondent admitted to contravention of s.716 of the Fair Work Act 2009 (Cth) by failure to comply with statutory compliance notice and penalty hearing proceeded on default of Respondent – consideration of relevant factors – penalties determined.
Legislation:	Corporations Act 2021 (Cth) ss.12, 14, 109X Crimes Act (Cth) 1914 s.4AA Fair Work Act 2009 (Cth) ss.90, 539, 545, 546, 687, 701, 716 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r.13.06
Cases cited:	Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 CFMMEU v ABCC [2018] FCAFC 97 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076
Division:	Division 2 General Federal Law
Number of paragraphs:	54
Date of hearing:	10 September 2024
Place:	Melbourne
Solicitor for the Applicant:	Fair Work Ombudsman
The Respondent:	No appearance

MLG 678 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	BSW ELECTRICAL SERVICES PTY LTD Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	14 NOVEMBER 2024