Fair Work Ombudsman v Buffalos Cairns Operations Pty Ltd - [2023] FedCFamC2G 355

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Buffalos Cairns Operations Pty Ltd [2023] FedCFamC2G 355

File number(s): BRG 446 of 2021

Judgment of: JUDGE EGAN

Date of judgment: 9 May 2023

Catchwords: INDUSTRIAL LAW – Application for imposition of pecuniary penalties for non-compliance with compliance notices – where no contrition or co-operation shown by Respondent – where money owed to employees has not been paid – where the Respondent has failed to comply with Court orders – pecuniary penalty orders made accordingly.

Legislation: Fair Work Act 2009 (Cth) ss. 545(1), 546(1), 716(5)

Cases cited:
Fair Work Ombudsman v Promoting You Pty Ltd [2012] FMCA 58

Kelly v Fitzpatrick [2007] FCA 1080

Division: Division 2 General Federal Law

Number of paragraphs: 16

Date of last submission/s: 8 May 2023

Date of hearing: 8 May 2023

Place: Brisbane

Solicitor for the Applicant: Ms Dwight - Fair Work Ombudsman

The Respondent: No appearance
ORDERS

BRG 446 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
BUFFALOS CAIRNS OPERATIONS PTY LTD

Respondent

order made by:

JUDGE EGAN

DATE OF ORDER:

9 may 2023

THE COURT ORDERS THAT:
1.Pursuant to the provisions of s. 546(1) of the Fair Work Act 2009 (Cth) (‘FWA’), the Respondent shall pay pecuniary penalties in the amount of $29,970.00 to the Consolidated Revenue Fund of the Commonwealth by reason of its contravention of the provisions of s. 716(5) of the FWA, such payment to be made on or before 4.00pm on 5 June 2023.
2.Each party have liberty to apply on the giving of three (3) days’ notice, each to the other.

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 Egan
Introduction

On 16 November 2022, the Court made the following orders:
“IT IS ORDERED THAT:
1.Summary judgment be entered in favour of the Applicant pursuant to rule 13.10(1)(b)(ii) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (General Federal Rules).
2.Pursuant to s 545(1) of the Fair Work Act 2009 (Cth) (FW Act), the Respondent remedy the direct effects of the contraventions set out in the First CN within 28 days of this order, by paying $3,599.17 (the Patel Outstanding Amount) and $2,699.06 (the Bahadir Outstanding Amount) to the Applicant.
3.Pursuant to s 547(2) of the FW Act, the Respondent pay the Applicant interest on the Patel Outstanding Amount in the sum of $255, and in respect of the Bahadir Outstanding Amount, interest in the sum of $197, calculated in accordance with the Federal…

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: [2023] FedCFamC2G 355
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the Fair Work Ombudsman (Applicant) brought an application against Buffalos Cairns Operations Pty Ltd (Respondent) seeking the imposition of pecuniary penalties for non-compliance with three compliance notices issued under the Fair Work Act 2009. The application arose from the Respondent's failure to comply with earlier Court orders requiring payment of monies owed to former employees. The Respondent had shown no contrition or cooperation in relation to these obligations. The central legal issues for the Court to decide were whether the Respondent had contravened the Act and, if so, what pecuniary penalties should be imposed to serve both specific and general deterrence purposes.

In addressing the legal issues, the Court considered the need for specific deterrence in the form of compelling the Respondent to comply with its obligations under the Act, as well as the need for general deterrence to warn other entities operating in the industry of the consequences of non-compliance. The Court found that the Respondent's conduct warranted a penalty to mark the law's disapproval and act as a warning to others. The penalties proposed by the Applicant were deemed reasonable given the severity of the non-compliance and the lack of any mitigating factors. The Court concluded that the Respondent's principal director was aware of the compliance notices yet failed to respond positively despite follow-up communications from the Applicant. The Respondent's status as a small company did not exempt it from its legislative obligations under the Act.

Consequently, the Court ordered that pecuniary penalties be imposed on the Respondent for the contraventions identified in the compliance notices. The penalties were calculated as 60% of the maximum penalty for the first compliance notice, 10% for the second, and 20% for the third. The total penalty imposed was $29,970. This amount was intended to serve both specific and general deterrence purposes, ensuring the Respondent complied with its obligations and warning other entities of the consequences of non-compliance. The parties were granted liberty to apply on three days’ notice to each other.

The final orders of the Court mandated that the Respondent pay the specified pecuniary penalties to the Consolidated Revenue Fund by a specified date, and that the Applicant distribute the earlier ordered monies to the affected employees within a stipulated timeframe. The Court's decision underscores the importance of compliance with employment obligations and the consequences of failing to do so.

Orders