Fair Work Ombudsman v Helix Bianca Nominees Pty Ltd

The Fair Work Ombudsman (the Applicant) sought default judgment and the imposition of a pecuniary penalty against Helix Bianca Nominees Pty Ltd (the Respondent), which operates the Seaford Dental Clinic. The dispute arose from the Respondent's alleged contraventions of the Health Professionals and Support Services Award 2010 and section 90(2) of the Fair Work Act 2009 (Cth) concerning the underpayment of wages and untaken annual leave for two employees, Mr Aliullah Aman and Mr Santo Giuffrida. The Applicant also alleged that the Respondent failed to comply with a compliance notice issued by a Fair Work Inspector. The matter was heard in the Federal Court of Australia before McNab J, with no appearance by the Respondent.

The court was required to determine whether default judgment should be entered against the Respondent and, if so, whether a pecuniary penalty should be imposed. Specifically, the court needed to be satisfied that the originating application and subsequent applications were properly served, that the Respondent had failed to file a defence or any material, and that it had failed to comply with a previous court order and appear at the hearing. Furthermore, the court had to consider the appropriate pecuniary penalty for the contraventions, including the failure to comply with the compliance notice.

McNab J found that default judgment was appropriate because the Respondent had been properly served, had failed to appear on multiple court dates, had not filed an address for service or a defence, and had failed to comply with a court order. The court was satisfied that the Respondent had contravened the Health Award and the Fair Work Act. In relation to the pecuniary penalty, the court considered submissions from the Applicant and relevant factors for penalty imposition, including the nature and extent of the conduct, the circumstances in which it occurred, any loss or damage sustained, the size of the business, whether the breaches were deliberate, the involvement of senior management, the need for deterrence, and the importance of enforcing employee entitlements.

The court ordered that default judgment be entered against the Respondent and declared that the Respondent had contravened the Health Award and the Fair Work Act. A pecuniary penalty of $26,640 was imposed on the Respondent for contravening section 716(5) of the Fair Work Act by failing to comply with the compliance notice.