Fair Work Ombudsman v G.Q. Industries Pty Ltd

[2019] FCCA 1304

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v G.Q. INDUSTRIES PTY LTD & ANOR [2019] FCCA 1304

Catchwords:
INDUSTRIAL LAW – Non-appearance by respondents on hearing date – application for judgment in default of appearance – relevant considerations relating to requirement that respondents be given notice of the hearing date – notice duly given – judgment entered in default of appearance.

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.13.03B, 13.03C

Fair Work Act 2009 (Cth) ss.44, 45, 340, 535, 536, 550.

Applicant: FAIR WORK OMBUDSMAN

First Respondent: G.Q INDUSTRIES PTY LTD

Second Respondent: BRENDAN ANGUS

File Number: BRG 921 of 2016

Judgment of: Judge Egan

Hearing date: 10 May 2019

Date of Last Submission: 10 May 2019

Delivered at: Brisbane

Delivered on: 10 May 2019

REPRESENTATION

Counsel for the Applicant: Ms C. Hartigan

Solicitors for the Applicant: Fair Work Ombudsman

First and Second Respondent: No Appearance

ORDERS

IT IS DECLARED THAT:

1. The First Respondent contravened:

   (a)section 45 of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay Mr Joseph Melit (Mr Melit) weekly as required by clause 31.3 of the Building Award;

   (b)section 45 of the FW Act by failing to pay Mr Melit and David van Heuzen (Mr Heuzen) (together, the Employees) the minimum rate of pay required by clause 19.7(b) of the Building and Construction General On-site Award 2010 (Building Award) and the allowances prescribed in clause 19.7(e) of the Building Award;

   (c)section 44(1) of the FW Act by failing to pay Mr Melit personal leave pursuant to section 99 of the FW Act;

(d)section 340(1)(a)(ii) of the FW Act by taking adverse action against Mr Melit because Mr Melit exercised a workplace right, namely taking personal leave;

(e)the safety net contractual entitlements for failing to pay Mr Melit for his full time hours of work of 38 hours per week;

(f)section 535 of the FW Act by failing to make and keep for seven (7) years records of the kind prescribed by the FW Regulations in relation to Mr Melit;

(g)section 536 of the FW Act by failing to provide Mr Melit with any payslips for the period February 2014 to June 2015;

(h)section 45 of the FW Act by failing to pay the Employees their Fare and Travel Pattern Allowances as required by clause 25.12 and 25.2 of the Building Award;

(i)section 44(1) of the FW Act by failing to pay the Employees for their absences on a public holiday as required by section 116 of the FW Act;

(j)section 45 of the FW Act by failing to pay the Employees overtime as required by clause 36.2 of the Building Award;

(k)section 45 of the FW Act by failing to pay the Employees Saturday penalty rates as required by clause 37.1 of the Building Award;

(l)section 45 of the FW Act by failing to pay Mr van Heuzen annual leave as required by clause 38.2(a) of the Building Award; and

(m)section 45 of the FW Act by failing to pay Mr van Heuzen annual leave loading as required by clause 38.2(b) of the Building Award.

1. The Second Respondent was involved in the First Respondent’s contraventions as set out in paragraph 2 above, within the meaning of section 550 of the FW Act.

AND IT IS ORDERED THAT:

1. Default judgment be entered in favour of the Applicant against the First Respondent and Second Respondent pursuant to rules 13.03B(2)(c) and 13.03C(2) of the Federal Circuit Court Rules 2001 (Cth).

2. The matter be listed for further hearing at 9:30 am on 12 November 2019 in the Federal Circuit Court of Australia at Brisbane to determine the application for the imposition of penalties and any other orders that are sought against the Respondents.

3. The Applicant is to file and serve any further evidence and submissions on the issue of penalty and any other orders sought by it no later than thirty-five (35) days prior to the date fixed for hearing pursuant to Order 4 hereof.

4. The Respondents are to file and serve any further evidence and submissions on the issue of penalty and any other orders sought by the applicant no later than twenty-one (21) days prior to the date fixed for hearing pursuant to Order 4 hereof.

5. The Applicant is to file and serve any further evidence or submissions in reply no later than fourteen (14) days prior to the date fixed for  hearing pursuant to Order 4 hereof.

6. The Applicant is to file and serve sealed copies of these Orders upon each of the First and Second Respondents by emails to be sent to “[email protected]” and posted by registered post to 32 Clausen Street, Mount Gravatt East, Queensland, 4122.

7. The parties have liberty to apply on the giving of three (3) days’ notice, each to the other.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 921 of 2016

FAIR WORK OMBUDSMAN

Applicant

And

G.Q. INDUSTRIES PTY LTD

First Respondent

BRENDAN ANGUS

Second Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing before the Court today by order of Judge Vasta made on 25 February 2019.  Neither of the respondents have entered an appearance when called.

2. There are some matters which are relevant to the non-appearance of each of the first respondent and the second respondent which are of relevance.  Firstly, the matter was listed for hearing at 9.30 am today.  It is now 10.35 am.  The Court list, both on the ground floor of the Court building and on level 2, which is the level that this Court is on, both correctly recorded that this matter was listed for hearing in this Court (Court 10) at 9.30 am.  The associate has called the matter on numerous occasions this morning and there has been no appearance by or on behalf of either the first respondent or the second respondent.  In those circumstances, counsel for the applicant, Ms Hartigan, has asked that the Court proceed to make orders in default of the appearance of each of the first respondent and the second respondent pursuant to the provisions of rule 13.03C(2) and rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth). Those respective rules provided as follows:

   Federal Circuit Court Rules 2001 – Rule 13.03B

   (2)  If a respondent is in default, the Court may:

   …

   (c)  if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings--give judgment against the respondent for the relief that:

   (i)  the applicant appears entitled to on the statement of claim; and

   (ii)  the Court is satisfied it has power to grant; or

   Federal Circuit Court Rules 2001 – Rules 13.03C

   (2)  If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court or the Registrar thinks just.

3. The relevant history of the matter was that on 11 May 2018, Judge Vasta made orders (as amended by an order made on 13 August 2018) granting leave to the respondents to withdraw various admissions made in pleadings.  The first respondent and the second respondent were represented by legal practitioners at the time.  On 17 September 2018, the then lawyers for the first respondent and the second respondent filed a notice of withdrawal of solicitor.  By paragraph 3 of the notice of withdrawal, it was deposed by Mr Myrteza, solicitor, of Australian Law Partners Pty Ltd, that:

   
   

   (a) a notice of intention to withdraw as lawyer had been served on each of the first respondent and the second respondent by sending that notice via email to the respondent's email address at "[email protected]";

   
   

   (b) that the notice of intention to withdraw had been served on the clients at least seven days before the date of filing of the notice of withdrawal as a lawyer;

   
   

   (c) a true copy of the notice of intention to withdraw had been attached to the notice;

   
   

   and (d) the last known business or residential address and telephone numbers were telephone [phone] and address:  32 Clausen Street, Mount Gravatt East, Qld, 4122.

4. On 22 October 2018, it was ordered by Judge Vasta that the matter be listed for a liability hearing (on the limited issues of adverse action and safety net contractual entitlements) on 23 January 2019 at 10 am.

5. On 25 February 2019, Judge Vasta ordered that the application be adjourned for hearing to 10 May 2019 at 9.30 am.

6. There has been contact between the legal representatives for the applicants and the second respondent subsequent to the filing of the notice of withdrawal of the lawyers.  In that regard, reference is made to an affidavit from Ms Henry by way of a file note dated 13 November 2018 which was annexure MMH-11 to the affidavit of Ms Henry filed on 10 May 2019.  That file note refers to a telephone conversation between Ms Henry and Mr Brendan Angus, who is the second respondent.  Annexure MMH-12 is an email from the second respondent to Ms Henry dated 13 November 2018.  The email address given as the address of the second respondent at that time was "[email protected]”.  Annexure MMH-13 is a further email from the second respondent to Ms Henry from the respondent’s email address dated 13 November 2018.  Annexure MMH-18 is at page 53 of the annexures and is a copy email from Ms Henry to the respondents dated 30 April 2019.  That email attached two letters which were addressed to the second respondent, care of the first respondent.

7. Each of those letters included reference to the fact that by a court’s notice of listing dated 1 March 2019, the application before the court remained listed for hearing before this court on 10 May 2019 at 9.30 am.  The letter appearing as annexure MMH-18 at page 55 of the annexures also indicated that such letter was not only emailed to the respondents, but was also sent by post to the respondents at the physical address of 32 Clausen Street, Mount Gravatt East, Queensland, 4122.  Annexure 1 is an email from [email protected], directed to the first respondent and to Ms Henry.

8. The email attached what was referred to as a notice of listing for the next hearing date.  The notice of listing attached to that email was addressed to each of the applicant and the first and second respondents, and relevantly confirmed that the hearing of the matter was listed for today at 9.30 am before this court.  A copy of the order of Judge Vasta made on 25 February 2019 was also attached.  That order, as indicated earlier, confirmed that the application was adjourned for hearing to 10 May 2019 at 9.30 am.

9. The applicant has relied upon each of the documents listed in paragraph 3 of its outline of argument filed on 23 November 2018, together with an affidavit of Mr Melit, filed on 11 May 2017, and an affidavit of Ms Henry, filed today.  Having read those affidavits, and having had regard to the clear notice having been given to the respondents of today’s hearing, the Court accepts the submissions made on behalf of the applicant that it is appropriate for the court to give judgment against the respondents for the relief sought in paragraphs 84 and 85 of the amended statement of claim filed on 2 July 2018, and the court makes those declarations as sought.

10. The court, having made those orders, received submissions on behalf of the applicant to the effect that the application for pecuniary penalties and other ancillary orders, as sought in paragraph 86 of the amended statement claim, ought to be adjourned for further hearing.  In part, such application was made on the basis that submissions as to penalty predated the occurrence of some relevant matters which go to the question of penalty.  The Court accedes to that application and accordingly orders that the matter be adjourned to a date to be fixed.

11. The Court further orders that the applicant be given liberty to apply on the giving of three days notice, should it seek any further orders or directions in the matter. 

12. A further order is made that the applicant cause sealed copies of the orders of the court made today to be served upon each of the first respondent and second respondent by way of email and by registered post, the latter being directed to the address at Mount Gravatt East referred to in the reasons.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 15 May 2019