Fair Work Ombudsman v C & G Smith Enterprises

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v C & G Smith Enterprises [2023] FedCFamC2G 523

File number: MLG 558 of 2022
Judgment of: JUDGE FORBES
Date of judgment: 23 June 2023
Catchwords: INDUSTRIAL LAW - Fair Work – declaration of failure to comply with Compliance Notice – consideration of factors relevant to penalty - failure to cooperate with regulator – where consequences of non-compliance should have been known - need for general and specific deterrence - penalties pursuant to s 546 Fair Work Act 2009 (Cth)
Legislation:

Crimes Act 2009 (Cth), s 4AA

Fair Work Act 2009 (Cth) s 90, 539, 546, 557, 716

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 4.03, 6.01, 13.04, 13.05, 17.05

Cases cited:

Agreed Penalties Case (2015) 258 CLR 482

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 at [116]

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

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) FCR 560; [2008] FCAFC 8

Fair Work Ombudsman v C & G Smith Enterprises Pty Ltd [2022] FedCFamC2G 579

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] 275 IR 148

Kelly v Fitzpatrick (2007) 166 IR 14

Kelly v Fitzpatrick [2007] FCA 1080

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

Division: Division 2 General Federal Law
Number of paragraphs: 84
Date of hearing: 6 April 2023
Place: Melbourne
Solicitor for the Applicant: Ms Anna Boden
Office of the Fair Work Ombudsman
The Respondent: No appearance

ORDERS

MLG 558 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

C & G SMITH ENTERPRISES

Respondent

order made by:

JUDGE FORBES

DATE OF ORDER:

23 JUNE 2023

THE COURT ORDERS THAT:

1.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) (the FW Act) the Respondent pay a pecuniary penalty of $19,980.00 for the contravention of section 716(5) of the FW Act, the subject of the declaration made by this Court on 27 July 2022, within 28 days of the date of this order.

2.Pursuant to section 546(3)(a) of the FW Act, any pecuniary penalties ordered to be paid by the Respondent be paid into the Consolidated Revenue Fund of the Commonwealth with 28 days of the date of this order.

3.The Applicant has liberty to apply on seven days’ notice in the event that any of the proceeding orders are 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…

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Details
Case
[2023] FedCFamC2G 523
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman initiated proceedings against C & G Smith Enterprises for non-compliance with a Compliance Notice issued under the Fair Work Act 2009 (Cth). The primary dispute was whether C & G Smith Enterprises had contravened section 716(5) of the Act by failing to comply with the Compliance Notice. The case was heard in the Federal Circuit and Family Court of Australia. The central legal issues before the court were whether the respondent had indeed contravened section 716(5) of the FW Act by failing to comply with the Compliance Notice and, if so, what penalty should be imposed for this contravention.

The court found that C & G Smith Enterprises had failed to comply with the Compliance Notice and, due to its non-appearance and non-compliance with procedural orders, default judgment was entered against it. The court declared that the respondent had contravened section 716(5) of the FW Act. The court also made orders for the respondent to take appropriate steps to comply with the Compliance Notice and mandated that a copy of the Default Orders be served on the respondent. Despite being notified of the power to set aside the judgment, the respondent did not make any application to vary or set aside the Default Orders.

Given the respondent's continued non-participation and failure to file any submissions or evidence, the court proceeded with the penalty hearing. The court determined that the respondent's conduct warranted the imposition of pecuniary penalties. The court considered the seriousness and duration of the contravention, the respondent's history of non-compliance, and the need for deterrence. The final orders included the imposition of pecuniary penalties on C & G Smith Enterprises in accordance with the declared contravention.

Orders

Orders of the court

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Background

Background to the litigation

C & G Smith Enterprises did not comply with the Compliance Notice by the required date, or at all, thereby necessitating these proceedings. Litigation Background The Ombudsman instigated these proceedings on 18 March 2022. In its application, the Ombudsman sought the making of final orders and declarations pursuant to the respondent's alleged contravention of section 716(5) of the FW Act. On 21 March 2022, a copy of the Initiating Application and the Statement of Claim were sent to the respondent's Registered Office address[2]. [2] Affidavit of Anna Louise Boden affirmed on 26 April 2022 [6] The matter first came before me on 14 April 2022. Ms Boden appeared on behalf of the Ombudsman and there was no appearance by or on behalf of the respondent. On that occasion, I made orders adjourning the proceeding for a further directions hearing and directed the applicant to serve a copy of those orders by mail to the respondent's Registered Office address (First April Orders). This service was attended to by the Ombudsman[3].[3] Affidavit of Anna Louise Boden affirmed on 26 April 2022 [9] On 27 April 2022, the matter came before me and again there was no appearance on behalf of the respondent. On this occasion, I made orders directing the respondent to file and serve a notice of address for service by 13 May 2022 and any defence by 27 May 2022 (Second April Orders). I also stipulated that in the event the respondent failed to comply with these filing requirements by the specified time, the Ombudsman may file and serve an Application in a Proceeding seeking default judgment pursuant to rule 13.04(2) of the Rules. The Ombudsman attended to service of these orders upon the respondent[4].[4] Affidavit of Anna Louise Boden affirmed on 8 July 2022 [8] The respondent did not file and serve a notice of address for service or a defence in these proceedings in accordance with my orders. Default Judgment and Declaration On 8 July 2022, the Ombudsman filed an Application in a Proceeding (Default Application) which sought default judgment against the respondent, pursuant to rule 13.05(2)(c) of the Rules. The Ombudsman's application for Default judgement was heard on 27 July 2022. Once again, there was no appearance by or on behalf of the respondent. Being satisfied as to service, I ordered that default judgment be entered for the Ombudsman against C & G Smith Enterprises pursuant to rule 13.05(2)(c) of the Rules by reason of its failure to: (a)file and serve an address for service, as required by rule 6.01(1) of the Rules; (b)file and serve a response with 28 days of service, as required by rule 4.03(3) of the Rules; (c)file and serve a notice of address for service by 13 May 2022 and a response and defence by 27 May 2022, as required by the Second April Orders; and (d)defend the proceeding with due diligence. (The Default Orders). Upon the admissions which the respondent was taken to have made by reason of its default, I declared that the respondent had contravened s 716(5) of the FW Act by failing to comply with the Compliance Notice. The Court also made orders requiring the respondent to take appropriate steps to comply with the Compliance Notice and for a copy of the Default Orders be served on the respondent within 28 days of the making of the orders.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent did not file and serve a notice of address for service or a defence in these proceedings in accordance with my orders. Default Judgment and Declaration On 8 July 2022, the Ombudsman filed an Application in a Proceeding (Default Application) which sought default judgment against the respondent, pursuant to rule 13.05(2)(c) of the Rules. The Ombudsman's application for Default judgement was heard on 27 July 2022. Once again, there was no appearance by or on behalf of the respondent. Being satisfied as to service, I ordered that default judgment be entered for the Ombudsman against C & G Smith Enterprises pursuant to rule 13.05(2)(c) of the Rules by reason of its failure to: (a)file and serve an address for service, as required by rule 6.01(1) of the Rules; (b)file and serve a response with 28 days of service, as required by rule 4.03(3) of the Rules; (c)file and serve a notice of address for service by 13 May 2022 and a response and defence by 27 May 2022, as required by the Second April Orders; and (d)defend the proceeding with due diligence. (The Default Orders). Upon the admissions which the respondent was taken to have made by reason of its default, I declared that the respondent had contravened s 716(5) of the FW Act by failing to comply with the Compliance Notice. The Court also made orders requiring the respondent to take appropriate steps to comply with the Compliance Notice and for a copy of the Default Orders be served on the respondent within 28 days of the making of the orders. Following the hearing, my chambers emailed a copy of the Default Orders to the respondent's two known email addresses[5]. The Default Orders included a notation drawing the respondent’s attention to the Court’s power under rule 17.05 of the Rules to vary or set aside a judgment or order which has been made in the absence of that party. Despite the inclusion of this notation, the respondent did not make an application for the Default Orders or any order to be set aside. [5] Affidavit of Anna Louise Boden affirmed on 24 March 2023, Annexure AB-13 The matter was otherwise adjourned to 6 April 2023 for a penalty hearing and orders were made for the filing of evidence and submissions on the question of penalty. On 2 March 2023, the Ombudsman filed its Outline of Submission on Penalty and an affidavit affirmed by FWI Tran on 2 March 2023. The respondent was required to file and serve any affidavit evidence and written submissions in respect to penalty by no later than 16 March 2023. As at the date of the penalty hearing, the respondent had not filed any submission or material, nor has it provided any explanation for its failure to do so. PENALTY PROCEEDING The Ombudsman now seeks the imposition of pecuniary penalties against the respondent pursuant to the declared contravention of sub-section 716(5) of the Act. At the penalty hearing on 6 April 2023, Ms Boden again appeared on behalf of the Ombudsman. Despite being notified of the time and date of the listing, there was no appearance by or on behalf of the respondent, nor any other communication with the Court to explain its non‑attendance. I caused the respondent to be called outside the Court room, however there was no response to the call. The matter proceeded notwithstanding the respondent’s non‑appearance.Penalty range sought by the applicant