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 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 Egan
Introduction
On 15 February 2023, this Court ordered that summary judgment be entered in favour of the applicant against the first respondent and the second respondent. Declarations and other orders were made as follows:
“IT IS DECLARED THAT:
A. The First Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice given to the First Respondent on 9 July 2021(Compliance Notice).
B.The Second Respondent was involved, within the meaning of section 550(2) of the FW Act, in the contravention by the First Respondent of section 716(5) of the FW Act and is taken to have contravened that provision.
AND IT IS FURTHER ORDERED THAT:
2.Pursuant to section 545(1) of the FW Act, the First Respondent take the steps that were required by the Compliance Notice within 28 days of this order, by:
a. paying to Kelly-Anne Viebrock, the employee the subject of the Compliance Notice (the Employee), the outstanding entitlements the First Respondent was required to pay to the Employee, being the total amount of $3,870;
b.calculating and paying superannuation contributions into the Employee’s nominated superannuation fund for the additional superannuation contributions required to be paid on the outstanding entitlements referred to in paragraph 4.a.i above; and
c.providing evidence to the Applicant that the outstanding entitlements and additional superannuation contributions as set out in paragraphs 4.a.i and 4.a.ii above have been paid.
3.Pursuant to section 547(2) of the FW Act, the First Respondent pay to the Employee interest of $173.52 calculated up to 31 December 2022 in accordance with the applicable pre-judgement interest rate prescribed by the Federal Court of Australia on the amount owed to the Employee pursuant to paragraph 4.a.i above, within 28 days of this order.”
The matter was listed for final hearing on 2 March 2023 regarding the question of what penalties ought to be imposed in the light of the Court having found that the first respondent had failed to comply with a compliance notice duly given to the first respondent on 9 July 2021, and further, that the second respondent had relevantly been involved in such contravention.
It was submitted on behalf of the applicant that to the date of the penalties hearing, the employee had not received payment from the respondents of the sum of $3,870.00 together with interest in the amount of $173.52.
It is important that all businesses, big and small, comply with workplace relations legislation, and that they be deterred from breaching such legislation. In Kelly v Fitzpatrick [2007] FCA 1080 at [28], when considering that very question, Tracy J said as follows:
“[28]The respondents have expressed contrition and have put in place mechanisms which are designed to ensure that there will be no repetition of the breaches which have led to the present proceeding. Specific deterrence does not, therefore, loom large as a consideration in determining penalty. It does not follow that the need for general deterrence may be disregarded. As Finkelstein J said in CPSU v Telstra Corporation Limited [2001] FCA 1364; (2001) 108 IR 228 at 231: "even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law’s disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct ..." No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction "must be imposed at a meaningful level": see Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] FCA 383; [2001] ATPR 41-815 at [13].”
The Court has had regard to the principle that whilst any penalty imposed must not be crushing or oppressive, it must be commensurate with the seriousness of the conduct engaged in by the respondents. [1]
[1] Fair Work Ombudsman v Promoting You Pty Ltd [2012] FMCA 58
In this matter, though the respondents did not appear either on the hearing of the application for summary judgment, or on the penalties hearing, the respondents did participate significantly in the proceeding by agreeing to a statement of agreed facts (SOAF) filed in the Court on 15 September 2022.
At paragraphs [15] – [18] inclusive of the SOAF, the first respondent admitted that it had failed to take specified action by 13 August 2021 or at all, or otherwise produce reasonable evidence to the applicant of compliance by it with the compliance notice by 20 August 2021 or at all. The compliance notice was relevantly annexed to the SOAF as SOAF-1.
The first respondent admitted that it had contravened the provisions of s. 716(5) of the Fair Work Act 2009 (Cth) (FWA).
At [21] of the SOAF, the second respondent admitted that she had been relevantly involved in the contravention by the first respondent of s. 716(5) of the FWA within the meaning of s. 550(2) of the FWA. The second respondent further admitted that pursuant to the provisions of s. 550(1) of the FWA, she was taken to have contravened the provisions of s. 716(5) of the FWA.
At [22] and [23] of the SOAF, the respondents consented to the making of declarations and other orders going to the question of contravention of the relevant provisions of the FWA and the imposition of pecuniary penalties.
Imposition of Penalties
The Court accepts that there is a need for general deterrence when it imposes a pecuniary penalty for contraventions of the FWA. In the case of a company, an expression of contrition for the offending conduct is most clearly seen by the way the corporation has taken steps to alleviate its wrongdoing and change its behaviour. [2]
[2] ACE Insurance Limited v Trifunovski (No. 2) [2012] FCA 793 at [113] – [114] per Perram J
In circumstances where there has been no acknowledged contrition on the part of the respondents, and further where there has been no payment to the relevant employee of money owed to them by the first respondent, the fact of co-operation in the preparation of the SOAF does not relieve the Court of the responsibility of imposing pecuniary penalties which actually will deter future contraventions of the FWA. [3]
[3] Fair Work Ombudsman v AJR Nominees Pty Ltd (No. 2) [2014] FCA 128 at [50] per Gilmour J
When considering what the appropriate penalty ought to be, discounting is only relevant where there has been actual contrition and a demonstrated desire on the part of the offenders to remedy their recalcitrant behaviour. In the present matter, such positive behaviour has been absent. No discounting ought to apply as a consequence.
It was submitted on behalf of the applicant that the penalty range for each of the first respondent and the second respondent ought to be between 50% - 60% of the maximum penalties able to be imposed. The Court is minded to impose penalties fixed at 55% of the maximum respective penalties as follows:
First Respondent 55% x $33,300.00 $18,315.00
Second Respondent 55% x $6,660.00 $3,663.00
The Court orders 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.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 2 March 2023
3
6
0