Fair Work Ombudsman v Darrell Crouch & Associates Pty Ltd

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Federal Circuit and Family Court of Australia

(DIVISION 2)

Fair Work Ombudsman v Darrell Crouch & Associates Pty Ltd [2023] FedCFamC2G 80

File number(s): PEG 87 of 2021
Judgment of: JUDGE LUCEV
Date of judgment: 10 February 2023
Catchwords: INDUSTRIAL LAW – Fair Work – contravention of compliance notice – agreed statement of facts as to contravention and accessorial involvement – penalty hearing – factors for consideration as to penalty – failure to make proper payment in lieu of notice of termination – whether alleged error in communication by Fair Work Ombudsman warrants reduction in appropriate penalty – whether deliberate choice by employer not to comply with compliance notice – whether genuine apology by employer – where no or nominal penalty sought by employer – necessity for general and specific deterrence
Legislation:

Crimes Act 1912 (Cth) s 4AA

Fair Work Act2009 (Cth) ss 117, 539, 546, 550, 682, 716, 717

Fair Work Bill 2008 (Cth)

Workplace Relations Act 1996 (Cth)

Explanatory Memorandum to the Fair Work Bill 2008 (Cth)

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Another [2018] HCA 3; (2018) 262 CLR 157; (2018) 92 ALJR 219; (2018) 273 IR 211; (2018) 351 ALR 190; (2018) 70 AILR 102-917

Australian Building and Construction Commissioner v Pattinson & Anor [2022] HCA 13; (2022) 96 ALJR 426; (2022) 314 IR 301; (2022) 399 ALR 599

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560; (2008) 246 ALR 35; (2008) 60 AILR 100-809

Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; (2007) 157 FCR 329; (2007) 161 IR 262; (2007) 59 AILR 100-640

Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (2015) 90 ALJR 113; (2015) 255 IR 87; (2015) 326 ALR 476; (2015) 67 AILR 102-494

Fair Work Ombudsman v 3 Rundle Mall Pty Ltd [2022] FedCFamC2G 354

Fair Work Ombudsman v Absynthe Restaurant Pty Ltd & Anor [2015] FCCA 58

Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128

Fair Work Ombudsman v Althaus Homes Pty Ltd [2021] FCCA 126

Fair Work Ombudsman v ANSA Finance Pty Ltd [2022] FedCFamC2G 833

Fair Work Ombudsman v ASGBRIS Pty Ltd & Anor [2020] FCCA 553

Fair Work Ombudsman v Baal Gammon Copper Pty Ltd [2021] FCCA 348

Fair Work Ombudsman v Blu Hornsby Pty Ltd & Anor [2016] FCCA 1150

Fair Work Ombudsman v First Group of Companies Pty Ltd (Deregistered) & Ors [2018] FCCA 1228

Fair Work Ombudsman v Gothic Downs Pty Ltd [2022] FedCFamC2G 21

Fair Work Ombudsman v Kleen Group Pty Ltd & Anor [2016] FCCA 278

Fair Work Ombudsman v Matcraft Pty Ltd [2021] FCCA 272

Fair Work Ombudsman v Nobrace Centre Pty Ltd & Anor (No.2) [2019] FCCA 2144

Fair Work Ombudsman v NSH North Pty Ltd (t/as New Shanghai Charlestown) [2017] FCA…

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Details
Case
[2023] FedCFamC2G 80
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) filed proceedings against Darrell Crouch & Associates Pty Ltd and its director, Darrell Crouch, alleging contraventions of the Fair Work Act 2009 (FW Act) concerning non-compliance with a Compliance Notice issued on 22 January 2021. The FWO sought pecuniary penalties against the company and Mr Crouch, as well as declarations and orders to enforce compliance with the Act. The Court was required to determine the appropriate penalties for the contraventions committed by the respondents.

The primary legal issues before the Court were whether the penalties proposed by the FWO were appropriate and whether the respondents had a reasonable excuse for their non-compliance with the Compliance Notice. The Court considered the submissions of both parties, the Statement of Agreed Facts, and relevant evidence, including affidavits and the transcript of the hearing. The Court also examined the FWO’s compliance with its obligations under the FW Act and the effect of an error in communication on the respondents' liability.

The Court found that the penalties proposed by the FWO were not crushing or otherwise inappropriate. The Court rejected the respondents' argument that the FWO's error in sending the Compliance Notice to the wrong email address excused their non-compliance. The Court held that the respondents had opportunities to address concerns about the FWO's investigation before the Compliance Notice was issued and that the respondents had admitted contravening the FW Act. The Court also found that the respondents did not have a reasonable excuse for their non-compliance, as they made a conscious decision to "let it expire." The Court concluded that the penalties proposed by the FWO were appropriate and ordered the company and Mr Crouch to pay the specified pecuniary penalties.

In conclusion, the Court ordered Darrell Crouch & Associates Pty Ltd to pay a pecuniary penalty to the Commonwealth for its contravention of the FW Act, and Darrell Crouch to pay a pecuniary penalty for his involvement in the contravention. The Court also granted the FWO liberty to apply for enforcement if the orders were not complied with. The Court considered the nature and extent of the conduct leading to the breach, the respondents' opportunities to address concerns about the FWO's investigation, and the effect of the FWO's error in communication on the respondents' liability in reaching its decision.

Orders

Orders of the court

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Background

Background to the litigation

The Court has before it the following materials:(a)the Originating Application and Statement of Claim filed 30 April 2021;(b)the Amended Defence and Amended Response filed 15 June 2021;(c)the Statement of Agreed Facts filed 6 July 2021;(d)the FWO’s Outline of Submissions on Penalty filed 7 September 2021 (“FWO’s Submissions”);(e)the Respondents’ Outline of Submissions on Penalty filed 28 September 2021 (“Respondents’ Submissions”);(f)the FWO’s Outline of Submissions in Reply filed 12 October 2021 (“FWO’s Reply Submissions”);(g)the affidavit of Daniel Spencer sworn 26 July 2021 (“Spencer Affidavit”); (h)the affidavit of Louise Claire Casey affirmed 26 July 2021 (“Casey Affidavit”);(i)the affidavit of Darrell John Crouch sworn 12 August 2021 (“First Crouch Affidavit”);(j)the affidavit of Lee Taylor sworn 12 August 2021 (“First Taylor Affidavit”);(k)the affidavit of Darrell John Crouch sworn 28 September 2021 (“Second Crouch Affidavit”); (l)the affidavit of Lee Taylor sworn 15 December 2021 (“Second Taylor Affidavit”); and (m)the transcript of the hearing on 17 February 2022 (“Transcript”).Background By way of background the Court observes that:(a)an investigation by the FWO into the Respondents began subsequent to a request for assistance made by Mahesh Pithadia (“Employee”), a former employee of DC & Associates’ real estate and business broking agency: Statement of Agreed Facts [8];(b)on 22 January 2021 Fair Work Inspector Casey (“FWI Casey”) issued the Compliance Notice to DC & Associates based on her reasonable belief that DC & Associates had contravened s 117 of the FW Act, a term of the National Employment Standards, between 5 and 11 February 2019, in respect of the Employee: Statement of Agreed Facts [13]-[15];(c)the Compliance Notice required DC & Associates to take requisite action as specified in the Compliance Notice in order to remedy the direct effects of the contravention, and to provide to the FWO evidence of compliance by 26 February 2021: Statement of Agreed Facts [16];(d)DC & Associates failed to comply with the Compliance Notice in that it did not:(i)take the specified action by the remediation date; or(ii)produce to the FWO evidence of compliance with the Compliance Notice, by 26 February 2021: Statement of Agreed Facts [18];(e)Mr Crouch was responsible for ensuring that DC & Associates complied with the Compliance Notice: Statement of Agreed Facts: [20];(f)Mr Crouch did not co-operate with FWI Casey in relation to ensuring compliance with the Compliance Notice: Statement of Agreed Facts [21];(g)the parties have agreed to the Court making the following orders:(i)pursuant to s 546(1) of the FW Act, DC & Associates pay a pecuniary penalty to the Commonwealth, for DC & Associates’ contravention of s 716(5) of the FW Act, within 28 days of the order;(ii)pursuant to s 546(1) of the FW Act Mr Crouch pay a pecuniary penalty to the Commonwealth, as Mr Couch was involved within the meaning of s 550(2) of the FW Act in the contravention of DC & Associates’ contravention of s 716(5) of the FW Act, within 28 days of the order;(iii)the FWO have liberty to apply on 7 days’ notice in the event that any of the preceding orders are not complied with; and(iv)such further orders as the Court considers appropriate: Statement of Agreed Facts [23]-[24].The Proceedings

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court does not consider that the penalties to be imposed are, in their totality, crushing or otherwise inappropriate. There is certainly nothing in the evidence to indicate that that would be the case.Conclusion and Orders The Court has concluded that there ought to be declarations and orders essentially in the terms sought by the FWO, and as reflected in the Statement of Agreed Facts at [6], with the appropriate penalties being as set out at [98] above.

Ratio Decidendi

Legal Principle Established

In reply, the FWO submitted that:(a)the Respondents’ submissions raise allegations about the FWO up until the time that it issued the Compliance Notice on 22 January 2021. They contend, in effect, that the unintentional issuing of an email to the incorrect recipient caused the Respondents to fail to comply with the Compliance Notice and has led to these proceedings, and rely on it to argue that the Respondents should receive either no penalty or a nominal penalty of $1: Respondents’ Submissions at [51];(b)the above contentions are speculative, ignore agreed and admitted facts about what the Respondents actually did, and would lead to the Court imposing a penalty that is manifestly inadequate;(c)the quoted passage by the Respondents from the Compliance and Enforcement Policy relied upon by the Respondents should not be read in isolation, but in the context of the remainder of the relevant paragraph which describes the FWO’s functions: Casey Affidavit p 21, as follows: •monitoring compliance with the FW Act and fair work instruments;•inquiring into and investigating any act or practice that may be contrary to the FW Act, a fair work instrument or a safety net contractual entitlement;•commencing proceedings in a Court (or in limited circumstances making an application to the Fair Work Commission) to enforce the FW Act, a fair work instrument or a safety net contractual entitlement; and•referring matters to other relevant authorities where appropriate. (d)in commencing these proceedings, the FWO is fulfilling the functions given to the FWO under s 682 of the FW Act, as described in the Compliance and Enforcement Policy;(e)the Error does not constitute a breach of the Compliance and Enforcement Policy (which does not impose any legal obligation), nor does it negate the FWO’s obligations to fulfil its functions under the FW Act. It also does not provide the Respondents with an excuse for failing to pay the Employee his entitlements provided for by the National Employment Standards (which is admitted by the Respondents);(f)the Respondents did have opportunities to address concerns raised about the FWO’s investigation before the Compliance Notice was issued. Those opportunities included:(i)FWI Spencer telephoning Mr Crouch on 11 January 2021, an admitted and agreed fact: Statement of Agreed Facts at [12]; and(ii)Mr Arnold telephoning Mr Crouch on 8 December 2020, another admitted and agreed fact: Statement of Agreed Facts at [10];(g)the Respondents have admitted that they contravened s 716(5) of the FW Act by failing to comply with the Compliance Notice: Statement of Agreed Facts at [1]-[2]. On 5 July 2021 they signed (while having the benefit of legal representation) a Statement of Agreed Facts admitting matters about their contravention. There is no scope for the Respondents to now claim within this proceeding that FWI Casey did not have the requisite Reasonable Belief to issue the Compliance Notice;(h)the FWO rejects the Respondents’ submission that the FWO did not provide the Respondent with an opportunity to provide information and that it did not properly engage with the Respondents. The contention that the Compliance Notice would not likely have been issued is speculative and should be rejected, particularly because on 11 January 2021 (prior to the issuing of the Compliance Notice), Mr Crouch had informed the FWO that his position was that the former Employee had received his full entitlement, an admitted and agreed fact: Statement of Agreed Facts [12];(i)the Respondents were clearly informed of the remedies available to them if they wished to challenge the Compliance Notice. The FWO refers to:(i)page 2 of the cover letter to the Compliance Notice: Casey Affidavit p 10, which states:(A)the Compliance Notice provides DC & Associates with a further opportunity to rectify the contravention;(B)the Compliance Notice sets out a number of actions that DC & Associates is required to take on or before 19 February 2021;(C)complying with the Compliance Notice is not an admission (nor does it constitute a finding) that DC & Associates has contravened the FW Act: see also paragraph 4 of the Compliance Notice: Casey Affidavit p 12 at [4];(D)if DC & Associates fails to comply with the Compliance Notice by 19 February 2021, it may contravene s 716(5) of the FW Act, unless it has a reasonable excuse: see also paragraph 1 of the Compliance Notice: Casey Affidavit p 12 at [1]. In those circumstances, the FWO may (without further notice) commence legal action against DC & Associates and/or individuals involved in DC & Associates’ failure to comply with the Compliance Notice: see also paragraph 2 of the Compliance Notice: Casey Affidavit p 12 at [2], and that a court may impose penalties of up to $6,660 in respect of an individual or $33,300 in respect of a body corporate for each failure to comply with a Compliance Notice; and(E)alternatively, DC & Associates may apply to a court for a review of the Compliance Notice on either or both of the grounds that DC & Associates did not commit the contravention set out in the Compliance Notice or the Compliance Notice does not comply with s 716(2) or 716(3) of the FW Act: see also paragraph 5 of the Compliance Notice: Casey Affidavit p 12 at [5];(j)the Respondents do not have a reasonable excuse for failing to take notice of the Compliance Notice, and (as they accept: Respondents’ Submissions at [28]) made a conscious decision to simply “let it expire”;(k)the Respondents incorrectly refer to an employer being “guilty” of a legislative contravention or “guilty of wrongdoing” when a FWI forms a reasonable belief under s 716 of the FW Act and issues a Compliance Notice. Section 716(4B) of the FW Act expressly states that a person who complies with a compliance notice in relation to a contravention of a civil remedy provision is not taken to have admitted to contravening the provision or to have been found to have contravened the provision. The effect of this subsection was explained in the cover letter to the Compliance Notice and the Compliance Notice itself;(l)the Respondents admitted contravening s 716(5) of the FW Act at the time the Statement of Agreed Facts was filed by the parties on 6 July 2021. That the Respondents knew of the Error prior to this admission is clear from the Statement of Agreed Facts at [10] which expressly states “Mr Arnold had inadvertently sent the email intended for Mr Crouch to the Employee. Mr Crouch therefore did not receive Mr Arnold’s email”;(m)despite the Error, the FWO did engage with the Respondents; and(n)the length of time from the issuing of the Compliance Notice until the Compliance Notice was complied with by DC & Associates was from 22 January 2021 until June 2021: Casey Affidavit pp 49-50.Consideration - Nature and extent and circumstances of the conduct which led to the breach