Fair Work Ombudsman v Express Cars Direct Australia Wide Pty Ltd (No 2)

In the Federal Circuit Court, Fair Work Ombudsman took action against Express Cars Direct Australia Wide Pty Ltd, trading as Express Cars, and its director, Mr Petrevski, for failure to comply with a compliance notice. The court was tasked with determining the appropriate penalties and relief orders, given the respondents' conduct throughout the proceedings. The central issues included whether certain payments identified as underpayments were steps required under the compliance notice, and whether contingent underpayments could be considered for penalty assessment or compensatory orders. The court found that the respondents' failure to comply with the compliance notice and their conduct throughout the proceedings justified a penalty at the higher end of the scale sought by the Ombudsman. The court rejected the respondents' argument that they should not be held liable for the contraventions, as well as their claims for discounts on penalty based on corrective action, cooperation, or contrition.

The court's reasoning was grounded in the respondents' failure to engage meaningfully in the proceedings and their continued non-compliance with the compliance notice. Despite the respondents' belated engagement in the case, their conduct throughout demonstrated indifference and a lack of respect for the court process. The court found that there was no evidence of previous similar conduct, but considered the respondents' apparent first offence as a mitigating factor. Ultimately, the court determined that a penalty at the higher end of the scale was warranted, given the respondents' conduct and the need for deterrence. The court ordered Express Cars Direct Australia Wide Pty Ltd to pay a penalty of $23,310 and Mr Petrevski to pay a penalty of $4,662. The court also made orders for the respondents to perform the steps required under the compliance notice and to pay compensation for the underpayments identified.