Fair Work Ombudsman v H-Teq Pty Ltd (No 2)
[2025] FedCFamC2G 781
•28 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v H-Teq Pty Ltd (No 2) [2025] FedCFamC2G 781
File number(s): BRG 206 of 2023 Judgment of: JUDGE EGAN Date of judgment: 28 May 2025 Catchwords: INDUSTRIAL LAW – where the first respondent failed to pay entitlements due to an employee for a small sum – where the second respondent was accessorily liable for the first respondent’s contravention – where deterrence nonetheless a consideration for the imposition of pecuniary penalties – orders accordingly. Legislation: Fair Work Act 2009 (Cth), s. 550(2), s. 716(5) Cases cited: ACE Insurance Ltd v Trifunovski (No. 2) [2012] FCA 793
Fair Work Ombudsman v AJR Nominees Pty Ltd (No. 2) [2014] FCA 128
Fair Work Ombudsman v Equine Robinson Pty Ltd [2023] FedCFamC2G 159
Kelly v Fitzpatrick [2007] FCA 1080 at [28]
Division: Division 2 General Federal Law Number of paragraphs: 13 Date of hearing: 14 April 2025 Place: Brisbane Solicitor for the Applicant: Mr B. McAuliffe, Fair Work Ombudsman Counsel for the Respondents: No appearance ORDERS
BRG 206 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: H-TEQ PTY LTD (ACN 112 175 541)
First Respondent
IAN ROBERT TURNER
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
28 MAY 2025
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 27 June 2025 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 8 February 2022;
(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 27 June 2025 by reason of his 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 3 December 2024, the following declarations and orders were made by the Court in this proceeding:
IT IS ORDERED THAT:
1. Pursuant to s. 545(1) of the Fair Work Act 2009 (Cth) (“FW Act”), the first respondent contravened s. 716(5) of the FW Act by failing to comply with a compliance notice given to it on 8 February 2022 pursuant to s. 716(2) of the FW Act (compliance notice).
2. Pursuant to s. 545(1) of the FW Act, the second respondent was involved, in the meaning of s. 550(2) of the FW Act, in the first respondent’s contravention of s. 716(5) of the FW Act as declared in Declaration 1 above.
AND IT IS ORDERED THAT:
3. Pursuant to s. 545(1) of the FW Act, by 31 December 2024, the first respondent shall:
a. Pay the amount of $3442.77 to the applicant; and
b. Provide proof of payment to the applicant of the amount in sub-paragraph (a) hereof.
4. Pursuant to s. 547(2) of the FW Act, by 31 December 2024, the first respondent shall pay the amount of $790 in interest on the amount of compensation in Order 3(a) hereof.
5. The applicant shall distribute to Mr Zoran Andrevski, a former employee of the first respondent, the amounts paid to the applicant pursuant to Orders 3(a) and 4 hereof, within 90 days’ of the payments being made from the first respondent to the applicant.
6. The matter be listed for directions on the question of the imposition of any civil penalties at 9.45 am on 21 January 2025.
7. Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
8. The costs of and incidental to the application, and the application for default judgment, be reserved.
On 21 January 2025, the matter was listed for directions for the purpose of progressing the matter to a hearing for the imposition of pecuniary penalties. On that day, the Court made the following orders:
IT IS ORDERED THAT:
1. The matter be listed for hearing at 9.45am on 14 April 2025 in respect of the imposition of a pecuniary penalty for the contraventions referred to in the order of the Court made on 3 December 2024.
2. The Applicant shall file and serve written submissions and affidavit evidence in respect of the imposition of pecuniary penalties on or before 18 February 2025.
3. The First and Second Respondents shall file and serve written submissions and affidavit evidence in respect of the imposition of pecuniary penalties on or before 18 March 2025.
4. The Applicant shall file and serve any written submissions or affidavit evidence in reply on or before 1 April 2025.
5. The Applicant shall forthwith serve a copy of this Order on each of the Respondents by:
(a) Sending a copy of the Order by express post to the registered office of the first respondent; and
(b) By attaching a copy of this order to an email to the second respondent.
6. Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
7. The costs of and incidental to today’s appearance be reserved.
On the basis of the contents of the affidavit of Mr McAuliffe filed on 20 March 2025, the Court is satisfied that orders made on 21 January 2025 relating to service of the order and the applicant’s further affidavit material upon the respondents have been complied with.
On 14 April 2025, there was no appearance before the Court by or on behalf of the respondents in respect of the pecuniary penalties hearing.
At the time of the hearing on the question of the imposition of pecuniary penalties, the evidence before the Court was that neither the first respondent company, nor the second respondent as the first respondent’s sole director, had complied with the terms of the Compliance Notice given to the first respondent on 8 February 2022. It was further submitted that as at the date of the pecuniary penalties hearing, the respondents had failed to pay the sum of $3,442.77 to the employee affected by the first respondent’s non-compliance with its legislative obligations under the Fair Work Act 2009 (Cth) (the FWA).
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.
Imposition of Penalties
In Fair Work Ombudsman v Equine Robinson Pty Ltd [2023] FedCFamC2G 159 at [11] – [13] it was held as follows:
11. 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. (ACE Insurance Ltd v Trifunovski (No. 2) [2012] FCA 793 at [113] – [114] per Perram J)
12. 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. (Fair Work Ombudsman v AJR Nominees Pty Ltd (No. 2) [2014] FCA 128 at [50] per Gilmour J)
13. 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.
This was a case where the subject proceeding was required to be instituted because the first respondent had failed to comply with the terms of the Compliance Notice. The second respondent was accessorily liable in respect of the contravention of the provisions of the FWA by the first respondent.
It was submitted on behalf of the applicant that the respondents had not co-operated in any meaningful way during the course of the proceeding, and that they had shown no contrition in respect of the contravention. Accordingly, it was submitted that the first respondent should be ordered to pay a pecuniary penalty in the amount of $26,640.00, that being 80% of the maximum penalty for a corporation, and that the second respondent be ordered to pay a pecuniary penalty in the amount of $5,328.00, that being 80% of the maximum penalty in respect of an individual.
The second respondent remonstrated that the affected employee had been properly paid, and that the applicant’s pursuit of the respondents had been unreasonable. There was no evidence to substantiate such allegations.
In all the circumstances, and in the exercise of the Court’s discretion, the Court considers that:
(a) The first respondent should be ordered to pay a pecuniary penalty in the amount of $18,315.00, that being 55% of the maximum penalty able to be imposed in respect of a corporation; and
(b) The second respondent should be ordered to pay a pecuniary penalty in the amount of $3,663.00, that being 55% of the maximum penalty able to be imposed in respect of an individual.
And it is so ordered.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 28 May 2025
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