Fair Work Ombudsman v Delahill Pty Ltd - [2018] FCCA 3629

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v DELAHILL PTY LTD & ANOR

[2018] FCCA 3629

Catchwords:
INDUSTRIAL LAW – Breaches of civil remedy provisions of the Fair Work Act 2009 – penalties – pecuniary penalties – relevant considerations.

INDUSTRIAL LAW – Failure to comply with compliance notice – whether the conduct alleged to justify the issuing of the compliance notice should be taken into account when determining the penalty for not complying with the compliance notice.

Legislation:

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Fair Work Act 2009, ss.539, 546, 550, 700, 715, 716, 717

Crimes Act 1914, ss.4AA, 4F

Workplace Relations Act 1996

Kelly v Fitzpatrick (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Fair Work Ombudsman v Hair Industrie Mt Druitt Pty Ltd [2015] FCCA 3426
Fair Work Ombudsman v Absynthe Restaurant Pty Ltd [2015] FCCA 58
Fair Work Ombudsman v Blu Hornsby Pty Ltd [2016] FCCA 1150
ACE Insurance Ltd v Trifunovski (No 2) (2012) 215 IR 206
Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union (No 2) (2010) 199 IR 373

Applicant:

FAIR WORK OMBUDSMAN

First Respondent:

DELAHILL PTY LTD ACN 003 252 444

Second Respondent:

GUILHERME ROQUE REBELLO

File Number:

SYG 1612 of 2015

Judgment of:

Judge Cameron

Hearing date:

8 August 2016

Date of Last Submission:

8 August 2016

Delivered at:

Sydney

Delivered on:

13 December 2018

REPRESENTATION

Counsel for the Applicant:

Ms C. Bembrick

Solicitors for the Applicant:

Office of the Fair Work Ombudsman

The Second Respondent appeared in person and on behalf of the first respondent

THE COURT DECLARES THAT:

The first respondent contravened s.716(5) of the Fair Work Act 2009 (“FW Act”) by failing to comply with the compliance notice issued by the applicant on 2 April 2015.
The second respondent was involved, within the meaning of s.550(2) of the FW Act, in the first respondent’s contravention of s.716(5) of the FW Act.

THE COURT ORDERS THAT:

The first respondent pay a penalty of $15,000, in respect of its contravention of s.716(5) of the FW Act.
The second respondent pay a penalty of $3,000, in respect of his involvement in the first respondent’s contravention of s.716(5) of the FW Act.
The penalties ordered in orders 1 and 2 be paid into the Consolidated Revenue Fund of the Commonwealth within 28 days.
The applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1612 of 2015

FAIR WORK OMBUDSMAN

Applicant

And

DELAHILL PTY LTD ACN 003 252 444

First Respondent

GUILHERME ROQUE REBELLO

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The first respondent (“Delahill”) operates a plastic products manufacturing business under the trading name ABCO Plastics at a factory in Guildford, a suburb of Sydney. The second respondent, Mr Rebello, is the sole director and secretary of Delahill.
Mr Anura Karunaratne…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3629
Decision Date: 13 December 2018

CaseChat Overview and Summary

The Fair Work Ombudsman (FWO) brought proceedings in the Federal Court of Australia against Delahill Pty Ltd concerning alleged breaches of the civil remedy provisions of the *Fair Work Act 2009* (Cth). The dispute centred on Delahill's failure to comply with a compliance notice issued by the FWO, which required the company to rectify underpayments to its employees.

The primary legal issue before the Court was whether the conduct that formed the basis for the FWO issuing the compliance notice could be considered when determining the penalty for Delahill's subsequent failure to comply with that notice. The FWO contended that the original contraventions should be taken into account, while Delahill argued that the penalty should be confined to the failure to comply with the notice itself.

Judge Cameron reasoned that the *Fair Work Act 2009* contemplates that the underlying contraventions are relevant to the assessment of penalties for non-compliance with a compliance notice. The Court held that the purpose of compliance notices is to secure rectification of contraventions, and therefore, the seriousness of the original contraventions is a material factor in determining the appropriate penalty for failing to comply with the notice. The Court applied principles of statutory interpretation to conclude that the legislative framework did not intend to sever the link between the original contraventions and the penalties for non-compliance with remedial directions.

The Court ordered Delahill Pty Ltd to pay pecuniary penalties for its contraventions of the *Fair Work Act 2009*.

Orders