Fair Work Ombudsman v Glasshouse Mountains Tavern Pty Ltd and Anor (No.2)

[2016] FCCA 2796

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v GLASSHOUSE MOUNTAINS TAVERN PTY LTD & ANOR (No.2) [2016] FCCA 2796

Catchwords:
INDUSTRIAL LAW ‑ Application for civil penalties ‑ pecuniary penalty imposed upon First Respondent.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 323

Federal Circuit Court Rules 2001 (Cth), R.16.05

Cases cited:

Fair Work Ombudsman v Glasshouse Mountains Tavern Pty Ltd & Anor [2016] FCCA 1899

Applicant: FAIR WORK OMBUDSMAN

First Respondent: GLASSHOUSE MOUNTAINS TAVERN PTY LTD

Second Respondent: TAMMI MAREE POINTON

File Number: BRG 383 of 2012

Judgment of: Judge Baumann

Hearing date: 23 September 2016

Date of Last Submission: 23 September 2016

Delivered at: Brisbane

Delivered on: 9 November 2016

REPRESENTATION

Solicitors for the Applicant: Fair Work Ombudsman

The Second Respondent appeared in person and on behalf of the First Respondent

ORDERS

THE COURT ORDERS:

1. That pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth):

   (a)The notation to the Orders made 26 July 2016 that “the First Respondent, Glasshouse Mountains Tavern Pty Ltd is now in administration” is removed.

THE COURT ORDERS ON A FINAL BASIS:

1. That in respect of all contraventions pursuant to subsection 546 (1) of the Fair Work Act 2009 (Cth) (“the Act”), a pecuniary penalty is imposed upon the First Respondent of $16,500.

2. That pursuant to subsection 546(3)(a) of the Act, the penalty imposed is to be paid into the consolidated Revenue Fund of the Commonwealth within twenty-eight (28) days of the date of this Order.

3. That the Applicant have liberty to apply on seven (7) days notice for enforcement.

.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 383 of 2012

FAIR WORK OMBUDSMAN

Applicant

And

GLASSHOUSE MOUNTAINS TAVERN PTY LTD

First Respondent

And

TAMMI MAREE POINTON

Second Respondent

REASONS FOR JUDGMENT

1. On 26 July 2016, in this matter the Court delivered reasons for determining, as a result of findings by the Court that the Second Respondent Ms Tammi Maree Pointon had contravened the Fair Work Act 2009 (Cth) (“the Act”), and that the appropriate penalty was $3,000 (see Fair Work Ombudsman v Glasshouse Mountains Tavern Pty Ltd & Anor [2016] FCCA 1899).

2. The Court, it acknowledges mistakenly, did not make any determination of penalty against the First Respondent Glasshouse Mountains Tavern Pty Ltd, because it wrongly believed that the company was in administration (see notation to Order made 26 July 2016).

3. By application under Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), filed by the Applicant Fair Work Ombudsman on 6 September 2016, the error was brought to the Court’s attention.

4. The Court accepts that the failure to determine penalties against the First Respondent is able to be corrected under r.16.05 of the Rules.

5. In determining penalty, the Court adopts the reasons published including the history.  When this matter came before the Court again on 23 September 2016, Ms Pointon (as a Director of the First Respondent company), appeared.  She is not a lawyer and seemed a little confused, but was anxious to tell me that the company was in dire financial circumstances and may well shortly go into administration.

6. As authority makes it clear, the dire financial circumstances of a party is not a ground or defence against a penalty being imposed.

7. In my view, for the reasons set out in the earlier judgment, a penalty should be imposed as follows:

   a)The first two contraventions found should be grouped;

   b)For the two separate contraventions of s.44 of the Fair Work Act (refer to Order 1(a) and 1(b) of the Order made 2 December 2014), a pecuniary penalty is imposed on the First Respondent of $13,200 (being 40% of the maximum penalty);

   c)For the contravention of s.323 of the Act, considering the “technical” nature of the offence committed, a pecuniary penalty of 10% of the maximum of $33,000 is appropriate – namely $3,300.

8. For these reasons I make the orders which appear at the commencement of these Reasons.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Baumann

Date:  9 November 2016