Fair Work Ombudsman v ESR Group Pty Ltd (No 2)
[2024] FedCFamC2G 1373
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v ESR Group Pty Ltd (No 2) [2024] FedCFamC2G 1373
File number(s): SYG 722 of 2023 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 11 December 2024 Catchwords: INDUSTRIAL LAW – judgments and orders – slip rule - where pursuant to earlier reasons for judgment Court erroneously declared that second respondent failed to comply with three rather than with two compliance notices and erroneously ordered that the second respondent pay pecuniary penalties for three rather than two contraventions of s 716(5) of the Fair Work Act 2009 (Cth) – whether error due to accidental slip or omission – orders corrected pursuant to r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Legislation: Fair Work Act 2009 (Cth) ss 536(1), 545(1), s 546(1), 547(2), 550(2), 716(2),(5)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05(2)(h)
Cases cited: Fair Work Ombudsman v ESR Group Pty Ltd [2024] FedCFamC2G 1311 Division: Fair Work Number of paragraphs: 7 Date of last submission/s: 5 December 2024 Date of hearing: On the papers Place: Sydney, Chambers Solicitor for the Applicant: Ms F Parekh of Office of the Fair Work Ombudsman Solicitor for the Respondents: Mr A Sahay of Thornton + King Pty Ltd ORDERS
SYG 722 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: ESR GROUP PTY LTD (ACN 164 780 830)
First Respondent
PAUL SILVESTRO
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the declarations and orders made and pronounced on 29 November 2024 (Orders) be varied as follows:
(a)In paragraph 3 of the Orders replace “paragraph 1” with “sub paragraphs 1(a) and (b)”.
(b)In paragraph 11 of the Orders:
(i)add “and” at the end of subparagraph (b);
(ii)delete “(c) pay a pecuniary penalty of $5,394.60 for his involvement in the contravention referred to in declaration 1(c); and”; and
(iii)replace “(d)” with “(c)”.
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
On 29 November 2024, on the basis of reasons I published on that day, I made two sets of declarations and orders for the payment of pecuniary penalties (Earlier Reasons). [1] The first related to three contraventions of s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) based on the first respondent’s failure to comply with three compliance notices that had been issued pursuant to s 716(2) of the FW Act. The second set of declarations and orders for the payment of pecuniary penalties related to the first respondent’s contraventions of s 536(1) of the FW Act. The declarations and orders I made are as follows (Orders):
[1] Fair Work Ombudsman v ESR Group Pty Ltd [2024] FedCFamC2G 1311
THE COURT DECLARES THAT:
1.The first respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with:
(a)the compliance notice given to the first respondent on 10 August 2021 pursuant to s 716(2) of the FW Act;
(b)the compliance notice given to the first respondent on 27 January 2022 pursuant to s 716(2) of the FW Act; and
(c)the compliance notice given to the first respondent on 11 August 2022 pursuant to s 716(2) of the FW Act.
2.The first respondent contravened s 536(1) of the FW Act by failing to provide to each of its four employees (Employees), Mr Andrew Stannard, Mr Charalambos Aristodimou, Mr Craig McNeill, and Mr Geoffrey Loader pay slips within one working day of paying amounts to them in relation to the performance of work during the periods identified in the following table.
Employee Period Mr Stannard 19 November 2020 to 29 January 2021;
12 February 2021 to 12 March 2021Mr McNeill 4 October 2021 to 1 December 2021 Mr Aristodimou 5 May 2021 to about 2 July 2021 Mr Loader 1 November 2020 to 24 December 2020
3.The second respondent was involved, within the meaning of s 550(2) of the FW Act, in the first respondent’s contraventions of s 716(5) of the FW Act referred to in paragraph 1 of these orders.
4.The second respondent was involved, within the meaning of s 550(2) of the FW Act, in the first respondent’s contraventions of s 536(1) of the FW Act referred to in paragraph 2 of these orders.
THE COURT ORDERS THAT:
5.Pursuant to s 545(1) of the FW Act, within 28 days after the date of these orders, the first respondent pay to the nominated accounts of the Employees the following amounts:
(a) $412.52 to Mr Andrew Stannard;
(b) $2,618.77 to Mr Charalambos Aristodimou;
(c) $1,278.08 to Mr Craig McNeill; and
(d) $6,614.68 to Mr Geoffrey Loader.
6.Pursuant to s 545(1) of the FW Act, within 28 days after the date of these orders, the first respondent, calculate and pay to each of the Employees’ nominated superannuation funds any additional superannuation contributions required to be paid on the amounts referred to in order 5 above.
7.Pursuant to s 547(2) of the FW Act the first respondent pay interest at the rate of 6% to the Employees in respect of the amounts referred to order 5.
8.Pursuant to s 545(1) of the FW Act, within 7 days after each date on which the first respondent makes each or any part of the payments referred to in orders 5, 6, and 7, the first respondent prepare and provide the applicant with evidence of the payment or payments.
9. Pursuant to s 546(1) of the FW Act, the first respondent:
(a)pay a pecuniary penalty of $19,480.50 for the contravention referred to in declaration 1(a);
(b)pay a pecuniary penalty of $22,477.50 for the contravention referred to in declaration 1(b);
(c)pay a pecuniary penalty of $26,973 for the contravention referred to in declaration 1(c); and
(d)pay a pecuniary penalty of $44,955 for the contravention referred to in declaration 2.
10.The first respondent pay the pecuniary penalties referred to in order 9 to the Commonwealth within 28 days after the date of these orders.
11. The second respondent:
(a)pay a pecuniary penalty of $3,896.10 for his involvement in the contravention referred to in declaration 1(a);
(b)pay a pecuniary penalty of $4,495.50 for his involvement in the contravention referred to in declaration 1(b);
(c)pay a pecuniary penalty of $5,394.60 for his involvement in the contravention referred to in declaration 1(c); and
(d)pay a pecuniary penalty of $8,991 for his involvement in the contravention referred to in declaration 2.12.
12. The second respondent pay the pecuniary penalties referred to in order 11 to the Commonwealth within 28 days after the date of these orders.
At 12.21 pm on 5 December 2024, the lawyer for the applicant sent the following email to my Associate (to which the respondents’ lawyer was copied).
We refer to the above mentioned matter and his Honour’s decision (Decision) and orders of 29 November 2024 (Orders).
The Applicant wishes to bring the following to his Honours attention.
Orders
·The Applicant respectfully requests that paragraph 4 be amended to read “The second respondent was involved within the meaning of s550(2) of the FW Act, in the first respondent’s contraventions of s716(5) of the FW Act referred to in paragraph 1(a) and 1(b) of this Orders.” This amendment is requested because the Applicant does not allege that the Second Respondent was involved in the contravention of s716(2) of the Fair Work Act 2009 (Cth) in respect of the Compliance Notice issued on 11 August 2022.
·The Applicant requests that order 11(c) be deleted, as the Applicant does not allege that the Second Respondent was involved in this contravention.
Decision
·Paragraph 1 of the reasons for judgment erroneously states that Mr Silvestro is the sole director of ESR Group.
·The Applicant respectfully requests that this be amended to reflect that Mr Silvestro was the manager of ESR Group (as agreed in paragraph 13 of the Statement of Agreed Facts filed in these proceedings).
The Applicant has contacted the Respondent’s legal representatives and obtained their consent to us contacting the Court in relation to the above matters. The Respondents legal representatives have been copied in to [sic] this email.
Please let me know if you require any further information.
When the email was brought to my attention, I immediately realised that there is no question the applicant did not claim that the second respondent was involved in the first respondent’s contravention of the compliance notice referred to in declaration 1(c) of the Orders. For that reason, I should not have made declaration 3 to the extent I declared that the second respondent was involved in the first respondent’s contravention identified in declaration 1(c); and I therefore should not have made the order in paragraph 11(c) of the Orders.
I then considered what could be done in relation to the errors I made. I formed the view that the declaration and order I incorrectly made resulted from an oversight or misunderstanding on my part. That is sufficient to engage the power to vary the Orders under the “slip rule”, which is contained in r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules).[2] That rule, however, does not extend to authorising a judge to amend the reasons for judgment because an erroneous order or judgment was made on the basis of an error or misunderstanding contained in the reasons for judgment.[3]
[2] Paragraph (h) of r 17.05(2) provides that the Court “may vary or set aside a judgment or order after it has been entered if . . . there is an error arising in the judgment or order from an accidental slip or omission”.
[3] See J Tarrant “Amending reasons for judgment” (2013) 2 JCivLP 22
Having formed these views, I arranged for my Associate to send the following email to the parties’ legal representatives:
His Honour has requested this email be sent to the parties’ legal representatives in response to the email the applicant’s lawyer sent at 12.21 pm on 5 December 2024.
His Honour agrees that the applicant did not claim that the second respondent was involved in the first respondent’s contravention of the compliance notice referred to in declaration 1(c) of the orders made on 29 November 2024 (Orders). For that reason, his Honour should not have made declaration 3 to the extent his Honour declared that the second respondent was involved in the first respondent’s contravention identified in declaration 1(c) of the Orders; and his Honour therefore should not have made the order in paragraph 11(c) of the Orders.
His Honour is of the view that the errors identified in the previous paragraph were the result of oversight or misunderstanding on his Honour’s part; and, for that reason, the Orders may be amended under the slip rule, which is to be found in r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). His Honour is also of the view, however, that it would not be open to his Honour to amend the reasons for judgment published on 29 November 2024 to correct the substantive errors recorded in those reasons which led to the making of the incorrect declaration and order. His Honour, however, is able to, and will, amend the reasons for judgment by replacing the words “the sole director of ESR”, which appear in paragraph 1 of the reasons for judgment, with the words “the manager of ESR”, because this is not an error of substance.
In these circumstances, subject to any submissions the parties wish to make, his Honour proposes to list the matter at 9.30 am on Wednesday 11 December 2024 (at which listing the parties will not be required to attend) to pronounce orders pursuant to r 17.05(2)(h) of the GFL Rules to correct the errors in the Orders, and to publish reasons for judgment for making such orders. The orders his Honour proposes to pronounce are as follows:
Pursuant to r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the declarations and orders made and pronounced on 29 November 2024 (Orders) be amended as follows:
(a)In paragraph 3 of the Orders replace “paragraph 1” with “sub paragraphs 1(a) and (b)”.
(b) In paragraph 11 of the orders:
(i) add “and” at the end of subparagraph (b);
(ii)delete “(c) pay a pecuniary penalty of $5,394.60 for his involvement in the contravention referred to in declaration 1(c); and”; and
(iii)replace “(d)” with “(c)”.
If parties wish to make any submissions in relation to his Honour’s proposed course, they may do so by sending an email to his Honour’s Associate by 12:00 pm on Tuesday 10 December 2024.
The parties did not respond to the email.
I am satisfied that my having declared the second respondent was involved in the first respondent’s contravention identified in declaration 1(c) of the Orders, and my having made the order in paragraph 11(c) of the Orders that the second respondent pay a pecuniary penalty, was due to an oversight or misunderstanding and, for that reason, the Orders can be varied to correct the error pursuant to r 17.05(2)(h) of the GFL Rules. I propose, therefore, to make such orders.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 11 December 2024
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