Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Cooper-Green [2022] FedCFamC2G 489
File number(s): SYG 1583 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 20 June 2022 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – admission as to liability – penalty hearing – application of penalty principles. Legislation: Fair Work Act 2009 (Cth) ss 539, 545, 546, 547, 716 Cases cited: Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301
Division: Division 2 General Federal Law Number of paragraphs: 10 Date of last submission/s: 20 June 2022 Date of hearing: 20 June 2022 Place: Parramatta Solicitor for the Applicant: Ms Yates Solicitor for the Respondent: In person ORDERS
SYG 1583 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: TANYA LOUISE COOPER-GREEN
Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
20 June 2022
THE COURT ORDERS THAT:
1.A declaration that the Respondent, Ms Tanya Louise Cooper-Green, contravened s 716(5) of the FW Act by failing to comply with the Compliance Notice issued by Fair Work Inspector Marilyn Sturgeon on 3 March 2021.
2.Under section 545(1) of the FW Act, the Respondent take the steps that were required by the Compliance Notice, within 28 days of this order, by:
(a)paying the balance of $7,686.98 to Ms Malagre;
(b)calculating and paying any superannuation owing on the amount $7,686.98 above to Ms Malagre; and
(c)providing proof that the outstanding amounts were paid to Ms Malagre, as set out in Orders 2(a) and 2(b) above.
3.Under section 547(2) of the FW Act, the Respondent pay interest to Ms Malagre on the amount owed to Ms Malagre of $7,686.98, within 28 days of the order.
4.Under section 546(1) of the FW Act, the Respondent pay a pecuniary penalty of $4,000.00 to the Commonwealth for the contravention declared in Order 1 above, within 28 days of this order.
5.The Applicant has liberty to apply on 7 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 HUMPHREYS
Introduction
This matter concerns the appropriate pecuniary penalty to be imposed on the respondent in relation to an admission, via an Agreed Statement of Facts, tendered to the Court, that the respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (“the Act”) by failing to comply with a Compliance…
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Details
- AGLC
- Fair Work Ombudsman v Cooper-Green [2022] FedCFamC2G 489
- Case
- [2022] FedCFamC2G 489
- Decision Date
CaseChat Overview and Summary
The Fair Work Ombudsman (the applicant) brought proceedings against Ms Cooper-Green, the respondent, in relation to the underpayment of Ms Malagre, an employee at the respondent’s hairdressing salon, Jagged Edge Hair Design, in Port Macquarie, New South Wales. The applicant sought a pecuniary penalty against Ms Cooper-Green for failing to comply with a Compliance Notice issued under s 716(5) of the Fair Work Act 2009 (Cth) (“the Act”). The maximum penalty applicable under ss 539(2) and 546(2) of the Act is $6,600 for an individual. The respondent admitted to the contraventions via an Agreed Statement of Facts. The Court was required to determine the appropriate pecuniary penalty to impose on the respondent for her failure to comply with the Compliance Notice. The Court was also required to consider the factors relevant to determining a pecuniary penalty, including the nature and extent of the conduct, the circumstances in which the conduct took place, the need for specific and general deterrence, and the need to ensure compliance with minimum standards by provision of an effective means for the investigation and enforcement of employee entitlements.
The Court noted that it had a broad discretion in determining the appropriate penalty. The Court considered the factors relevant to determining a pecuniary penalty, including the nature and extent of the conduct, the circumstances in which the conduct took place, the need for specific and general deterrence, and the need to ensure compliance with minimum standards by provision of an effective means for the investigation and enforcement of employee entitlements. The Court considered that the respondent’s conduct was deliberate and that there was a need for specific and general deterrence. The Court also considered that the respondent had not exhibited contrition or taken corrective action. The Court concluded that the appropriate penalty was $6,600, the maximum penalty applicable under the Act.
The Court ordered that Ms Malagre be paid the balance of the amount of $7,687.98 by the respondent together with any superannuation owing on this amount and interest. The Court also ordered that the respondent pay a pecuniary penalty of $6,600 to the applicant.
The Court noted that it had a broad discretion in determining the appropriate penalty. The Court considered the factors relevant to determining a pecuniary penalty, including the nature and extent of the conduct, the circumstances in which the conduct took place, the need for specific and general deterrence, and the need to ensure compliance with minimum standards by provision of an effective means for the investigation and enforcement of employee entitlements. The Court considered that the respondent’s conduct was deliberate and that there was a need for specific and general deterrence. The Court also considered that the respondent had not exhibited contrition or taken corrective action. The Court concluded that the appropriate penalty was $6,600, the maximum penalty applicable under the Act.
The Court ordered that Ms Malagre be paid the balance of the amount of $7,687.98 by the respondent together with any superannuation owing on this amount and interest. The Court also ordered that the respondent pay a pecuniary penalty of $6,600 to the applicant.
Orders
Orders of the court
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Background
Background to the litigation
This matter concerns the appropriate pecuniary penalty to be imposed on the respondent in relation to an admission, via an Agreed Statement of Facts, tendered to the Court, that the respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (“the Act”) by failing to comply with a Compliance Notice that was given to her on 3 March 2021. The maximum penalty applicable under ss 539(2) and 546(2) of the Act is $6,600 for an individual. Background The respondent is a sole trader, operating a hairdressing salon under the business name of “Jagged Edge Hair Design” in Port Macquarie, New South Wales. During the period January 2019 to January 2021, the respondent employed Ms Malagre as a full-time employee. In January 2021, the Fair Work Ombudsman received a request for assistance from Ms Malagre in relation to allegations that she had been underpaid her employee entitlements. These allegations included working on Saturdays but not being paid penalty rates, not being paid the full amount of accrued but untaken annual leave when her employment ended and not being paid a leave loading of 17.5% on the annual leave that she had accrued and was payable when her employment ended. On 3 March 2021, the respondent was issued with a Compliance Notice under s 716(5) of the Act, requiring her to, inter-alia, calculate the amount of money that should have been paid to Ms Malagre for her unpaid entitlements, and to make a payment to Ms Malagre in relation to those underpayments. The respondent admits that she did not take the required action under the Compliance Notice by 14 April 21 and produce to the Fair Work Ombudsman (the applicant) any evidence of compliance by 21 April 21. As a result of the non-compliance, the applicant commenced proceedings in this Court on 21 August 2021.Approach to Penalty The proper approach to penalty in such matters was recently and conveniently set out by Judge Baird in New v Edition Coffee Roasters [2022] FedCFamC2G 448 at [6]- 10].[6] The Court has a broad discretion as to penalty. In Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301 Bromwich J summarised how the discretion is to be approached at [36], as follows:(1)Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.(2)Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.(3)Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.(4)Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.(5)Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (CFMEU Civil Penalties Case) at [64]) and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].[7] The purpose of a civil penalty is primarily, if not wholly, promoting the public interest in compliance with the laws that have been contravened, and it does not engage principles of retribution or rehabilitation: see Fair Work Ombudsman v Nobrace Centre Pty Ltd (in Liquidation) [2019] FCCA 2979 per Kelly J at [65]. As these principles of retribution or rehabilitation are not involved in the determination of a civil penalty, this intensifies the focus of a civil penalty determination on issues of specific and general deterrence: see Norbrace at [66].[8] The Act does not set out any mandatory criteria, inclusive or exclusive, that the Court must consider when determining whether to impose a penalty or the amount of any penalty: Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276; [2002] FCA 349 at [88]. The choice of penalty must be guided by the “individual circumstances of a case, not by a line-by-line comparison with another case”: Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith (2008) 165 FCR 560 at 12. The process is an intuitive one by the Court and not an application of a scientific process: Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70 at [60]‑[63]. [9] In Mason v Harrington Corporation Pty Ltd [2007] FMCA 7, Mobray FCM set out what is a now well accepted set of factors relevant in assessing a pecuniary penalty. They are as follows:(a)the nature and extent of the conduct which led to the breaches;(b)the circumstances in which the conduct took place;(c)the nature and extent of any loss sustained as a result of the breaches;(d)whether there has been similar previous conduct by the Respondents;(e)whether the breaches were properly distinct or arose out of one course of conduct;(f)the size of the business enterprise involved;(g)whether or not the breaches were deliberate;(h)whether senior management was involved in the breaches;(i)whether the party committing the breach had exhibited contrition; (j)whether the party committing the breach had taken corrective action;(k)whether the party committing the breach had cooperated with enforcement authorities;(l)the need to ensure compliance with minimum standards by provision of an effective means for the investigation and enforcement of employee entitlements; and(m)the need for specific and general deterrence.[10] Merkel J in Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal Plumbing and Allied Services Union of Australia (CEPU) (2001) 110 IR 372 set out some guiding considerations for the Court at 374:matters to be taken into account in determining the appropriate penalty include the cost of the contravention, deterrence, the flagrancy and deliberateness of the breach, the offender’s past record of behaviour and any contrition displayed by the offender.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Based on the material supplied to the Court, the Court is satisfied that it is appropriate to order under s 545(1) that Ms Malagre be paid the balance of the amount of $7,687.98 by the respondent together with any superannuation owing on this amount and interest.Conclusion The orders of the Court are set out at the commencement of the judgement.
Ratio Decidendi
Legal Principle Established
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