Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Callaghan [2022] FedCFamC2G 816
File number(s): SYG 709 of 2022 Judgment of: JUDGE HUMPHREYS Date of judgment: 5 October 2022 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – penalty hearing – statement of agreed facts – consideration of relevant matters – penalty imposed. Legislation: Fair Work Act 2009 (Cth) ss 557, 716 Cases cited: Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith (2008) 165 FCR 560
Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276
Fair Work Ombudsman v Nobrace Centre Pty Ltd (in Liquidation) [2019] FCCA 2979
Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia (2001) 110 IR 372
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 4 October 2022 Date of hearing: 4 October 2022 Place: Parramatta Solicitor for the Applicant: Mr Fiorenza Solicitor for the Respondent: In person
Table of Corrections 6 October 2022 At paragraph 2, including the word ‘ entitlements for payment in lieu of notice’. ORDERS
SYG 709 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: CHRISTINE LOUISE CALLAGHAN
Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
5 October 2022
THE COURT ORDERS THAT:
1.A declaration is made that the Respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (“FWA”), by failing to comply with the Compliance Notice issued by Fair Work Inspector Emma Warren on 6 September 2021.
2.Pursuant to s 545(1) of the FWA, the Respondent take the steps that were required by the by the Compliance Notice within 6 months of the date of this order, by:
(a)making the remaining specified payments set out in Column D of Schedule 1, to the Employees in Column A of Schedule 1 to rectify the underpayments in respect of annual leave, annual leave loading, minimum wages and payment in lieu of notice;
(b)calculate and pay any additional superannuation contributions required by clause 20.2 of the Transport Award in respect of the amounts owed to Ms Betts, Mr Murray and Mr Batman, and clause 20.2 of the Clerks Award in respect of the amounts owed to Ms Mahoney; and
(c)providing proof to the Applicant that the outstanding amounts set out in Orders 2(a) and 2(b) above were paid to the Employees.
3.Pursuant to s 547(2) of the FWA, the Respondent pay to the Employees interest on the amounts owed to them (in Order 2(a) above) within 6 months of the date of this order.
4.Pursuant to s 546(1) of the FWA, the Respondent pay a pecuniary penalty of $3,500.00 to the Commonwealth for the contravention declared in Order 1 above, within 6 months of…
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- Case
- [2022] FedCFamC2G 816
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the appropriate penalty for Callaghan's failure to comply with a compliance notice issued by the FWO. The FWO argued for a penalty within the range specified by the Fair Work Act 2009, considering the seriousness of the offence and the need for deterrence. Callaghan acknowledged her responsibility for not overseeing the bookkeeper's work more closely, which contributed to the underpayments. The court considered the admissions made by Callaghan, which warranted a reduction in the penalty, but also recognised the importance of sending a clear message to employers about the consequences of non-compliance.
In assessing the appropriate penalty, the court took into account the admissions made by Callaghan and the submissions put forward by the FWO. The court recognised the need for penalties to reflect the seriousness of wage underpayments and the importance of deterrence. It concluded that a penalty of $3,500 was appropriate, considering all factors, including Callaghan's admissions and the need to deter future non-compliance. This penalty was seen as sufficient to serve both specific and general deterrence while also reflecting the seriousness of the offence.
The court ordered that Callaghan pay a penalty of $3,500 to the FWO for her failure to comply with the compliance notice. This penalty was deemed appropriate given the circumstances and the need to uphold the standards set by the Fair Work Act 2009.
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
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Ratio Decidendi
Legal Principle Established
The respondent acknowledged that the fault lay with her as she should have taken greater interest in the work that was being undertaken by a book keeper as regards wages payments.Consideration The Court has taken account of all the matters put by the FWO in its submissions. On numerous occasions, this Court has indicated clearly that wage underpayments will not be tolerated and that appropriate penalties will be imposed to reflect the seriousness of the action together with the need for specific and general deterrence. The Court has taken account of the admissions made by the respondent. These have a significant utilitarian value in terms of reducing the amount of time on public money being expended on the matter that warrant an appropriate reduction in the penalty that might be otherwise payable. The Court, however, considers that a non-compliance with a compliance notice is a matter of some seriousness and that a clear message needs to be sent to employers the failure to do so will attract significant penalties. Taking all matters into account, the Court is of the view that the range of penalties put forward by the FWO is appropriate and that, in the circumstances, an appropriate penalty is the amount of $3,500.