Fair Work Ombudsman v Equine Robinson Pty Ltd - [2023] FedCFamC2G 159

Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Equine Robinson Pty Ltd [2023] FedCFamC2G 159

File number(s): BRG 195 of 2022

Judgment of: JUDGE EGAN

Date of judgment: 3 March 2023

Catchwords: INDUSTRIAL LAW – Application for imposition of pecuniary penalties for non-compliance with compliance notice – where respondents admitted legislative contraventions and agreed to the filing of an Agreed Statement of Facts – where no contrition shown – where no payment made to an employee for a small sum of money – where lack of contrition and failure to comply with orders of the Court did not justify the application of any discounting for the purpose of calculation of an appropriate penalty – where orders made accordingly.

Legislation: Fair Work Act 2009 ss. 716(5), 550(2), 550(1) and 546(1)

Cases cited:
ACE Insurance Limited v Trifunovski (No. 2) [2012] FCA 793

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

Fair Work Ombudsman v Promoting You Pty Ltd [2012] FMCA 58.

Division: Division 2 General Federal Law

Number of paragraphs: 15

Date of last submission/s: 2 March 2023

Date of hearing: 2 March 2023

Place: Brisbane

Solicitor for the Applicant: Norton Rose Fulbright: Mr Wichlinski

The Respondents: No appearance by or on behalf of the Respondents
ORDERS

BRG 195 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
EQUINE ROBINSON PTY LTD

First Respondent

OCEAN ROBINSON
Second Respondent

order made by:

JUDGE EGAN

DATE OF ORDER:

3 MARCH 2023

IT IS ORDERED THAT:
1.Pursuant to the provisions of s. 546(1) of the Fair Work Act 2009 (Cth):
(a)The First Respondent pay a pecuniary penalty in the amount of $18,315.00 to the Commonwealth of Australia Consolidated Revenue Fund on or before 4.00pm on 2 April 2023 by reason of its contravention of the provisions of s. 716(5) of the Fair Work Act 2009 (Cth) by failing to comply with the compliance notice given to it on 9 July 2021;
(b)The Second Respondent pay a pecuniary penalty in the amount of $3,663.00 to the Commonwealth of Australia Consolidated Revenue Fund on or before 4.00pm on 2 April 2023 by reason of her involvement (within the meaning of s. 550(2) of the Fair Work Act 2009 (Cth)) in the First Respondent’s contravention of the provisions of s. 716(5) of the Fair Work Act 2009 (Cth).

2.The Applicant have liberty to apply on the giving of two (2) days’ notice by it to the Respondents in the event of any failure on the part of either the First Respondent or the Second Respondent to comply with the orders of the Court as set out in paragraph 1 hereof.

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…

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: [2023] FedCFamC2G 159
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard a case brought by the Fair Work Ombudsman against Equine Robinson Pty Ltd and Ocean Robinson regarding breaches of the Fair Work Act 2009. The primary issue before the Court was the imposition of pecuniary penalties for non-compliance with a compliance notice issued on 9 July 2021. The respondents admitted to the contraventions but did not demonstrate any contrition or payment to the affected employee. The Court was tasked with determining the appropriate level of penalty to ensure compliance with workplace relations legislation and to act as a deterrent to future breaches.

The Court considered the principles of penalty imposition under the Fair Work Act, emphasizing the need for general deterrence and the importance of marking the law's disapproval of non-compliant conduct. Despite the respondents' cooperation in filing an Agreed Statement of Facts, the absence of contrition and payment to the employee meant that no discount should be applied to the penalties. The Court referenced previous cases to guide its decision, highlighting that penalties must be meaningful to achieve deterrence. Based on these considerations, the Court imposed penalties of 55% of the maximum allowable amounts for each respondent.

In its final orders, the Court directed that Equine Robinson Pty Ltd pay a penalty of $18,315 and Ocean Robinson pay a penalty of $3,663. The penalties were due by 2 April 2023. Additionally, the Fair Work Ombudsman was granted liberty to apply for enforcement if the respondents failed to comply with the Court's orders.

Orders