Fair Work Ombudsman v Centennial Financial Services Pty Ltd and Ors (No.2)
[2011] FMCA 568
•4 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v CENTENNIAL FINANCIAL SERVICES PTY LTD & ORS (No.2) | [2011] FMCA 568 |
| PRACTICE & PROCEDURE – Orders – when effective. |
| Workplace Relations Act 1996, ss.182, 235, 901, 902 Federal Magistrates Court Rules 2001, rr.16.02, 16.03 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | CENTENNIAL FINANCIAL SERVICES PTY LTD (ACN 112 859 248) |
| Second Respondent: | ROLF MERTES |
| Third Respondent: | CHRISTOPHER CHORAZY |
| File Number: | SYG 3337 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 July 2011 |
| Date of Last Submission: | 4 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Norton Rose Australia |
| The Second Respondent did not appear |
| The Third Respondent did not appear |
ORDERS
The payments referred to in Order 23 of the orders made on 21 June 2011 be made on or before 3 August 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3337 of 2008
| FAIR WORK OMBUDSMAN |
Applicant
And
| CENTENNIAL FINANCIAL SERVICES PTY LTD (ACN 112 859 248) |
First Respondent
| ROLF MERTES |
Second Respondent
| CHRISTOPHER CHORAZY |
Third Respondent
REASONS FOR JUDGMENT
Introduction
This is the third judgment in this proceeding. In the first judgment, delivered on 15 November 2010, it was held that the first respondent (“Centennial”) had contravened ss.182, 235, 901 and 902 of the Workplace Relations Act 1996. It was also held that the second respondent, Mr Mertes, had been involved in Centennial’s contraventions of ss.901 and 902 and in its contraventions of s.182 in what was described in that judgment as the “Second Period” and was thus treated as having contravened those provisions. It was further held that the third respondent, Mr Chorazy, had been involved in Centennial’s contraventions of ss.182, 901 and 902 and in its contraventions of s.235 in the Second Period and was thus treated as having contravened those provisions.
On 21 June 2011 the second judgment in this proceeding was delivered. It imposed pecuniary penalties on Messrs Mertes and Chorazy and directed how payment of those penalties was to be effected. The orders made on 21 June 2011 did not specify when the penalties were to be paid.
It was also ordered on 21 June 2011 that the parties have liberty to apply in the event that there was some difficulty in the working out of those orders. The applicant has exercised that liberty and has re-listed the matter today to seek an order that payment of the penalties ordered on 21 June 2011 be made within thirty days of today.
It is commonplace for courts to provide, in their rules, when their orders are to take effect. This Court is no different. Relevantly, the Federal Magistrates Court Rules 2001 provide:
16.02 Date of effect
Unless the Court otherwise orders, a judgment or order takes effect on the day when it is given or made.
16.03 Time for compliance
(1) Unless the Court otherwise orders, if an order (other than a parenting order) requires a person to do an act, the person must do so within 14 days after service of the order on the person.
(2) Subrule (1) does not apply to that part of an order that requires a person to pay money unless the requirement is to pay money into Court.
(3) If an order requires a person to do an act within a specified time, the Court may make an order requiring the person to do the act within another specified time.
It appears that the Fair Work Ombudsman (“Ombudsman”) is concerned that, without a specific order identifying when the penalties imposed on 21 June 2011 are to be paid, the orders imposing those penalties cannot be enforced. In this regard it must be acknowledged that the further amended application did seek an order that amounts ordered to be paid be paid within thirty days. However, the concern expressed by the Ombudsman and the time-based payment order sought in the further amended application are based on a misconception. Rule 16.02 provides that the orders made on 21 June 2011 took effect on that day. Although r.16.03(1) makes special provision in circumstances where a person is required to do an act, by reason of r.16.03(2) such special provisions do not apply to that part of an order which requires a person to pay money. Each of the orders made on 21 June 2011, other than the order that the parties have liberty to apply, was an order which required Mr Mertes or Mr Chorazy or both of them to pay money. As such, r.16.03 has no operation in relation to those orders with the consequence that r.16.02 applies to them according to its terms.
Because the orders for the payment of money in the form of penalties which were made on 21 June 2011 took effect on that day, they were enforceable immediately and any direction that they be paid by a later date would not have the effect of making them enforceable but of erecting a stay on their enforceability until such date as might be specified in the Court’s order. The Ombudsman submitted that if orders for the payment of penalties included a date by which payment was to be made then respondents would know when to pay and the Ombudsman would know when to take action on unpaid amounts. This is a problem which could be addressed by the Ombudsman informing respondents that penalties are payable immediately unless otherwise ordered and then making his own decision about how much time to afford a respondent before taking enforcement action.
However, today the Ombudsman presses his application for an order that the amounts ordered on 21 June 2011 be payable within thirty days, time to run from today. He recognises that such an order will have the effect of staying payment of those penalties until 3 August 2011, the date he has requested the Court to include in its order.
The respondents have not appeared today but as the orders made on 21 June 2011 have not been entered and, in any event, were subject to the liberty granted on that day, I am satisfied that I have the power to make the order which the Ombudsman has sought, namely, that the payments referred to in Order 23 of the orders made on 21 June 2011 be made on or before 3 August 2011. There will be an order accordingly.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 21 July 2011
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