Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Designer Projects Victoria Pty Ltd [2022] FedCFamC2G 959
File number(s): MLG 826 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 9 November 2022 Catchwords: INDUSTRIAL LAW – FAIR WORK – pecuniary penalty – admitted contraventions of the Fair Work Act 2009 (Cth) – failure to comply with compliance notice – failure to provide payslips – where proceedings brought against first respondent company and second respondent – where second respondent was a person involved within s.550 in the contravention of s.716(5) and s.536(1) – penalty determined. Legislation: Building and Construction General On-site Award 2020
Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth) ss.536(1), 539(2), 546(1), 550(2), 557, 716(5).
Cases cited: Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654.
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.
CFMMEU v ABCC [2018] FCAFC 97.
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46.
Fair Work Ombudsman v Tester [2021] FCCA 771.
Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53.
Markarian v The Queen [2005] HCA 25.
Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076.
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 7 November 2022 Date of hearing: 9 November 2022 Place: Melbourne Solicitor for the Applicant: HWL Ebsworth Lawyers First Respondent No appearance Second Respondent Appeared in person ORDERS
MLG 826 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: DESIGNER PROJECTS VICTORIA PTY LTD (ACN 623 768 294)
First Respondent
VISNA THANTHRIGE
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
9 NOVEMBER 2022
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
(Delivered Ex Tempore – Revised From Transcript)Judge Mansini
These are the written reasons for the judgment that was delivered ex tempore on 9 November 2022, at the request of the Second Respondent who desired a decision and orders on that day. The transcript of reasons has been amended in minor respects and only to correct typographical errors, insert headings and citations and to reflect the intention of the Court, as follows.
IN SUMMARY
Before the Court is an application by the Fair Work Ombudsman (Applicant) for declarations…
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- Case
- [2022] FedCFamC2G 959
- Decision Date
CaseChat Overview and Summary
The court found that the company was aware of its obligations under the compliance notice and the infringement notice and the consequences of non-compliance. The court concluded that the company's failure to comply was deliberate. However, the court accepted that the contrition and cooperation of the company might warrant a discount. The court further acknowledged the importance of compliance with minimum standards and the enforcement framework designed to protect employee entitlements. The court also noted that there was no evidence to suggest that the company was experiencing financial hardship, and such circumstances could not excuse the breaches of the workplace laws.
In light of the above findings, the court ruled in favour of the Fair Work Ombudsman and imposed penalties on Designer Projects Victoria Pty Ltd for the contraventions of the Act. The court also considered the company's contrition and cooperation in determining the penalty amount, which resulted in a discount being applied. The court emphasised the importance of compliance with minimum standards and the need to preserve the safety net of employee entitlements. Ultimately, the court ordered Designer Projects Victoria Pty Ltd to pay the penalties imposed by the Fair Work Ombudsman, along with any costs associated with the case.
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Background to the litigation
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Ratio Decidendi
Legal Principle Established
Ultimately, these failures had resulted in the former Employee being denied his entitlement to unused but accrued annual leave, and to understanding the precise value of what is owed to him. The circumstances which give rise to the contraventions are also relevant, and to be taken into account. Deliberateness, cooperation and contrition In all of the circumstances of this case, I am satisfied that the Respondents were aware of the need to comply with the compliance notice and then the infringement notice, and of the consequences of a failure to comply. That the First Respondent did not comply, I consider on the materials before the Court, to be deliberate. There was no evidence of corrective action taken, but the Applicant properly accepted that the contrition and cooperation of the Respondents in this matter might warrant the application of a discount. Having heard from the Second Respondent at the hearing on behalf of both Respondents, that contrition and willingness to cooperate is a matter for which I will apply significant weight in particular toward the Second Respondent. Compliance with minimum standards The importance of compliance with minimum standards is a further important consideration in this case – that is, the need for compliance with the statutory framework. The framework concerning compliance notices and infringement notices is an important mechanism for a Fair Work inspector to deal with non-compliance with minimum entitlements and its directions, as an alternative to commencing litigation. It also provides a means of early resolution and rectification without penalty. The substantial penalties that are set by the legislature for such contraventions of the Act demonstrate the importance that Parliament places on employers complying with their minimum obligations. The compliance with minimum standards is an important consideration in the present case, to ensure that the preservation of effective safety net for employee entitlements, and effective enforcement mechanism. I accept the Applicant’s contention that the Respondents’ failures to comply in this case and the contraventions in this case essentially undermine the enforcement framework and the safety net of entitlements that it is designed to protect. Size of the business and financial resources In terms of the size of the business and financial circumstances, I also accept the Applicant’s submission that there simply is not any evidence before the Court to demonstrate financial hardship, whether related to the pandemic or otherwise. And, even if I were minded to take judicial notice of the fact of the pandemic (which the Second Respondent referred to in oral submissions and about which there was no evidence put before the Court), that would not be something that I would necessarily be persuaded had a terribly adverse effect in the context of this (the building and construction) industry. In any event, there was no evidence about size and financial circumstances, and those matters would not excuse or explain breaches of the workplace laws.