Fair Work Ombudsman v Hickey (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Hickey (No 2) [2021] FedCFamC2G 80

File number(s): BRG 1072 of 2019
Judgment of: JUDGE JARRETT
Date of judgment: 24 September 2021
Catchwords: INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – particular cases
Legislation:

Crimes Act 1914 (Cth), s 4AA

Fair Work Act 2009 (Cth), ss 539(2), 546(2), 557(1)
Cases cited:

Australian Building and Construction Commissioner v CFMMEU [2020] FCA 549

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157

CFMMEU v ABCC (2018) 264 FCR 155

Commonwealth of Australia v Director of the FWBII (2015) 258 CLR 482

Fair Work Ombudsman v Port Douglas Investments As Trustee For The Theo Sourlos Family Trust & Anor [2018] FCCA 488

Fair Work Ombudsman v WCH Services Pty Ltd & Anor [2018] FCCA 1878

Smerff Electrical v Jordan Lamacq [2019] FWCFB 1767
Division: Division 2 General Federal Law
Number of paragraphs: 39
Date of last submission/s: 18 June 2021
Date of hearing: 18 June 2021
Place: Brisbane
Counsel for the Applicant: Mr McKechnie
Solicitor for the Applicant: Office of the Fair Work Ombudsman
The Respondent: No appearance

ORDERS

BRG 1072 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FAIR WORK OMBUDSMAN

Applicant
AND:

SIMON JOHN HICKEY

Respondent

ORDER MADE BY:

JUDGE JARRETT

DATE OF ORDER:

24 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The respondent pay penalties of $30,000 pursuant to subs.546(1) of the Fair Work Act 2009 (Cth) for the contraventions set out in declaration 1 of the orders made on 18 June, 2021.

2.The respondent to pay the respective penalty amount to the Consolidated Revenue Fund of the Commonwealth within 28 days of the Court’s order.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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 JARRETT:

  1. These reasons relate to the assessment and imposition of pecuniary penalties upon the respondent in respect of certain contraventions of the Fair Work Act 2009 (Cth).

  2. On 18 June, 2021 I found that the respondent, who at the relevant times traded under the name Smerff Electrical, had contravened the following civil remedy provisions of the Act:

    (a)s.45, by failing to pay Mr Jordan Lamacq during the period from 23 January, 2017 to 16 April, 2017 entitlements due to him under the Electrical, Electronic and Communications Contracting Award 2010  as follows:

    (i)minimum wage (clause 16.2);

    (ii)industry allowance (clause 17.2(a));

    (iii)casual loading (clause 10.3(b));

    (iv)overtime rates (clause 26.1(a)); and

    (v)the required employer superannuation contributions (clause 23.2);

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Details
Case
[2021] FedCFamC2G 80
Decision Date

CaseChat Overview and Summary

This case involved a proceeding by the Fair Work Ombudsman against Mr Hickey, who was found to have contravened the Fair Work Act by underpaying a casual employee, Mr Lamacq, between January and April 2017. The Fair Work Ombudsman sought to impose pecuniary penalties on Mr Hickey for these contraventions under section 546 of the Fair Work Act. The dispute centred on whether the respondent had contravened the Fair Work Act by underpaying Mr Lamacq, and if so, the appropriate penalty to be imposed.

The primary legal issue before the court was whether Mr Hickey had contravened the Fair Work Act by underpaying Mr Lamacq. The court had to determine whether the payments made to Mr Lamacq were in accordance with the terms of the Electrical Award, and if not, what penalties should be imposed. This involved examining the rates of pay specified in the Electrical Award and comparing them with the actual payments made to Mr Lamacq. Additionally, the court needed to consider whether the multiple contraventions should be treated as a single contravention under section 557(1) of the Fair Work Act.

The court found that Mr Hickey had indeed contravened the Fair Work Act by underpaying Mr Lamacq, and that these contraventions should be treated as six single contraventions. The court accepted the submission that the contraventions of certain sections of the Fair Work Act should be considered as six single contraventions, which was a proper recognition of the application of section 557(1). The court then considered the appropriate amount of penalty to impose, taking into account the seriousness of the contraventions, the respondent's conduct, and the need to ensure deterrence.

The court ordered that Mr Hickey pay pecuniary penalties in the sum of $30,000, which included both general and aggravated penalties. The court also made orders for the payment of interest and costs.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks that pecuniary penalties be imposed upon the respondent pursuant to s.546 of the Fair Work Act in respect of those contraventions.BACKGROUND Mr Lamacq was employed by the respondent to perform work as a casual trade assistant between 23 January, 2017 to 16 April, 2017. Mr Lamacq’s duties included removing rubbish from outside the respondent’s business vans, loading vans, gassing air conditioner units and cutting cable. Mr Lamacq was engaged as a Level 1 employee under the Electrical Award and entitled to the following rates:(a)$17.96 per hour for minimum wages (clause 16.2);(b)$4.68 per hour for casual loading (clause 10.3(b));(c)$0.76 per hour for industry allowance clause 17.2(a));(d)$28.08 per hour for overtime for the first two hours (clause 26.1(a)); and(e)$37.44 per hour for overtime worked in excess of two hours (clause 26.1(a)). However, Mr Lamacq was only paid $12 per hour from 23 January, 2017 to 12 February, 2017 and $15 per hour between 13 February, 2017 and 16 April, 2017. On 16 May, 2018 Mr Lamacq was dismissed from his employment with the respondent. On 17 May 2018, Mr Lamacq lodged an application for an unfair dismissal remedy in the Fair Work Commission pursuant to s.394 of the Fair Work Act in respect of the termination of his employment. On 14 January, 2019 the Fair Work Commission found that:(a)Mr Lamacq was protected from unfair dismissal within the meaning of s.382 of the Fair Work Act;(b)the termination of Mr Lamacq’s employment was harsh, unjust or unreasonable within the meaning of s.387 of the Fair Work Act;(c)reinstatement of Mr Lamacq was inappropriate; and(d)an order for payment of compensation was appropriate in the circumstances. On that day, the Fair Work Commission ordered that the respondent pay to Mr Lamacq compensation of $11,400 (taxed according to law) by 4 February, 2019. The respondent appealed the order, but on 26 March, 2019 a Full Bench of the Fair Work Commission dismissed the appeal. The respondent has not satisfied the order to pay Mr Lamacq $11,400. These proceedings were commenced on 13 December, 2019. The respondent filed a defence to them, but subsequently disengaged from the proceedings. He did not comply with the directions made by the Court for the filing of evidence or the preparation of the application for a trial on the issue of liability. Consequently when the matter came before me for trial on liability, the matter proceeded in the absence of the respondent and I made the declarations that I have referred to above. The Contraventions by the respondent are as follows: Subsection 557(1) of the Fair Work Act provides that two or more contraventions of specified civil remedy provisions must be treated as a single contravention where those contraventions were committed by the same person and arose from the same course of conduct. The applicant accepts that the respondent is entitled to that benefit in relation to repeated contraventions of each separate obligation under the Electrical Award, resulting in separate breaches of s.45 of the Fair Work Act. Thus, following the application of s.557(1), the contraventions of the following sections of the Fair Work Act should be treated as six single contraventions namely one contravention of s.405 of the Fair Work Act and five contraventions of s.45 of the Fair Work Act. I accept that submission. In my view that is a proper recognition of the application of s.557(1) in the present case.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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