FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Chapman [2023] FedCFamC2G 1018
File number(s): BRG 542 of 2022 Judgment of: JUDGE EGAN Date of judgment: 9 November 2023 Catchwords: INDUSTRIAL LAW – Failure by Respondent to comply with Compliance Notices issued by the Applicant – No contrition evident – non-compliance by Respondent with Court orders – non-engagement by Respondent in the Court proceedings – pecuniary penalty orders made accordingly. Legislation: Fair Work Act 2009 ss716, 546, 545, 547, 687, 701, 539, s30N, 716, 90.
Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 140.
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 r. 13.10.
Cases cited:
Ace Insurance Ltd v Trifunovski (No. 2) [2012] FCA 793.
Fair Work Ombudsman v Viper Industries Pty Ltd LTD & Anor [2015] FCCA 492.
Kelly v Fitzpatrick [2007] FCA 1080.
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Anor [2015] HCA 46.
Division: Division 2 General Federal Law Number of paragraphs: 16 Date of last submission/s: 2 November 2023 Date of hearing: 23 October 2023 Place: Brisbane Counsel for the Applicant: Mr D Payard of Counsel Solicitor for the Applicant: Ms Anbar (Fair Work Ombudsman In House) For the Respondent: No appearance ORDERS
BRG 542 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: ANDREW RICHARD CHAPMAN
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
9 NOVEMBER 2023
THE COURT NOTES THAT:
1.On 31 May 2023, the Court entered summary judgment against the Respondent pursuant to rule 13.10(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 in respect of the Applicant’s claim that the Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) by failing to comply with a compliance notice issued on 22 November 2021.
THE COURT ORDERS THAT:
1.Pursuant to section 546(1) of the FW Act, the Respondent pay a pecuniary penalty in the amount of $5,328.00 to the Consolidated Revenue Fund of the Commonwealth for his contravention of section 716(5) of the FW Act noted above, within 28 days of this order.
2.The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding 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 Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The applicant commenced proceedings on 6 December 2022.
In a Statement of Claim also filed on 6 December 2022, the applicant sought…
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- Case
- [2023] FedCFamC2G 1018
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether Chapman had contravened section 716(5) of the Fair Work Act 2009 (FW Act) by failing to comply with Compliance Notices issued by the FWO. Additionally, the court had to consider whether Chapman's actions warranted the imposition of pecuniary penalties. The FWO argued that Chapman had failed to take the specified action required by the Compliance Notices, which included identifying and paying the accrued annual leave owed to Ms. Di Constanzo. The court also considered Chapman's non-engagement in the proceedings and the absence of any contrition.
In its decision, the court found that Chapman had indeed contravened section 716(5) of the FW Act by failing to comply with the Compliance Notices. Given Chapman's non-appearance and non-engagement in the proceedings, the court concluded that there was no evidence of contrition. The court further noted that Chapman had not produced any evidence of compliance with the Compliance Notices. Consequently, the court imposed pecuniary penalties against Chapman. The reasoning was based on the seriousness of the breach, the lack of engagement by Chapman, and the need to deter similar conduct in the future.
The court ordered Chapman to pay pecuniary penalties as determined by the FWO. The specific amount of the penalties was not detailed in the text, but the court's decision emphasized the importance of compliance with Fair Work legislation and the consequences of non-compliance.
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
On 23 October 2023, the applicant made Application for the imposition of pecuniary penalties against the respondent. The respondent did not appear at the hearing before the Court. RELEVANT CONSIDERATIONS By reason of the non-appearance of the respondent at any stage of the proceeding, the respondent is taken to have admitted the allegations made against him in the Statement of Claim. The relevant allegations are as set out at [1] – [14] of the Statement of Claim and are as follows: 1. The Applicant, the Fair Work Ombudsman, is and was at all relevant times:(a)a statutory appointee of the Commonwealth appointed by the Governor-General by written instrument pursuant to s 687(1) of the Fair Work Act 2009 (Cth) (FW Act);(b) a Fair Work Inspector (FWI) pursuant to s 701 of the FW Act; and(c)a person with standing to bring these proceedings and to apply for orders for contraventions of civil remedy provisions pursuant to s 539(2) of the FW Act.2. The Respondent, Andrew Richard Chapman, is and was at all relevant times:(a) a natural person capable of being sued;(b)a “national system employer” by reason of the extended definition contained in s 30N(1)(a) of the FW Act; (c)a sole trader holding the Australia Business Number 83 638 235 108, practicing as a dentist, and the operator of a dental practice trading as “East Ballina Dental” located at Shop 8, 38-44 Links Ave, East Ballina, in the State of New South Wales;(d)by reason of the matters pleaded in paragraphs 2(b) and 2(c), covered by the FW Act in respect of his employees.B. CONTRAVENTION OF S 716(5) OF THE FW ACT3.FWI Carolina Gemayell (FWI Gemayell) is and was at all relevant times a FWI appointed by the Applicant under s 700 of the FW Act.4.On or around 19 October 2021, FWI Gemayell commenced an investigation (Investigation) in respect of the employment of Ms Indigo Di Constanzo (Ms Di Constanzo).5. Following the Investigation, FWI Gemayell formed a belief that:(a)during the period from on or around 14 October 2020 to 22 July 2021 (Employment Period):(i)the Respondent employed Ms Di Constanzo on a part-time basis;(ii) the Health Professionals and Support Services Award 2020 (Award) applied to both the Respondent and Ms Di Constanzo in relation to Ms Di Constanzo’s employment with the Respondent;(iii)Ms Di Constanzo was properly classified as a Level 4 Support Services employee under the Award in relation to her employment with the Respondent;(b)Ms Di Constanzo’s employment with the Respondent ended on 22 July 2021 (Termination Date);(c)despite having taken annual leave during her employment with the Respondent, Ms Di Constanzo had an accrued but untaken annual leave balance at the Termination Date;(d) pursuant to s 90(2) of the FW Act, the Respondent was required to pay Ms Di Constanzo, when her employment ended, the amount of untaken paid annual leave that would have been payable to her had she taken the period of leave, including any annual leave loading payable under clause 26.3(a) of the Award; and(e)Ms Di Constanzo was not paid any amount, at the relevant time or at any time thereafter, for accrued but untaken annual leave as at the Termination Date.6.By reason of the matters pleaded in paragraph 5 above, FWI Gemayell formed a reasonable belief within the meaning of s 716(1)(a) of the FW Act that the Respondent contravened s 90(2) of the FW Act (Contravention).7.On 22 November 2021, FWI Gemayell gave the Respondent a compliance notice pursuant to s 716(2) of the FW Act in respect of the Contravention (Compliance Notice).ParticularsA copy of the Compliance Notice was sent by pre-paid post to the principal place of business of the Respondent, being Shop 8, 38-44 Links Ave, East Ballina, in the State of New South Wales.8.In accordance with s 716(2) of the FW Act, the Compliance Notice required the Respondent to:(a)take the following specified action by 24 December 2021 to remedy the direct effects of the Contravention:(i)identify the number of hours of annual leave that Ms Di Constanzo had accrued as at the Termination Date (Accrued Annual Leave Hours); (ii)calculate the amount the Respondent should have paid to Ms Di Constanzo for the Accrued Annual Leave Hours;(iii)calculate the amount the Respondent should have paid to Ms Di Constanzo as annual leave loading for the Accrued Annual Leave Hours;(iv)pay Ms Di Constanzo the amounts calculated in (ii) and (iii) above; and(v)make a record of the information and amounts referred to in (i) to (iii) above, and the amount of the payment referred to in (iv) above (Underpayment Rectification Information); and(b)by 31 December 2021, produce reasonable evidence to the Applicant of the Respondent’s compliance with the Compliance Notice, by producing a schedule of the Underpayment Rectification Information, and proof that full payment of the amounts owed had been made to Ms Di Constanzo.9.The Compliance Notice met the requirements as set out in s 716(3) of the FW Act.10. The Respondent failed to:(a)take the specified action set out in the Compliance Notice by 24 December 2021, or at all; and(b)produce to the Applicant reasonable evidence of compliance with the Compliance Notice by 31 December 2021, or at all.11.By reason of the matters pleaded in paragraph 10, the Respondent failed to comply with the Compliance Notice.12.By reason of the matters pleaded in paragraphs 7 to 11, the Respondent contravened s 716(5) of the FW Act.Outstanding Amounts13.At the time of giving the Compliance Notice, FWI Gemayell had formed a belief that, on the termination of her employment, Ms Di Costanzo:(a) had 67.27 hours of untaken and accrued annual leave;(b) was entitled to a base rate of pay of $28.50 per hour; and(c)was entitled, pursuant to clause 26.3(a) of the Award, to annual leave loading of 17.5% calculated using the Level 4 Support Services classification minimum hourly rate of pay of $23.67 prescribed by clause 16.2 of the Award.14.By reason of the contravention pleaded in paragraph 12 and the matters at paragraph 13, FWI Gemayell formed a belief that, to rectify the direct effect of the Contravention, the Respondent was required to pay Ms Di Constanzo a total of $2,195.85 (gross).