Fair Work Ombudsman v Jalloh - [2023] FedCFamC2G 388

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Jalloh [2023] FedCFamC2G 388

File number(s): SYG 664 of 2022

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 12 May 2023

Catchwords: INDUSTRIAL LAW – assessment of a pecuniary penalty for contraventions of s 716(5) of the Fair Work Act 2009 (Cth).

Legislation:
Crimes Act 1914 (Cth) s 4AA

Fair Work Act 2009 (Cth) ss 12, 539(1), 539(2), 546, 557A, 700, 716(2), 716(5)

Cleaning Services Award 2020 cls 11.3, 18.2

Cases cited:
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8

Bevis v VA Holdings Pty Ltd trading as Granton Homes & Ors [2020] FCCA 2082

Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492

Fair Work Ombudsman v VS Investment Group Pty Ltd [2013] FCCA 208

Kelly v Fitzpatrick [2007] FCA 1080

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7

Division: Fair Work

Number of paragraphs: 25

Date of hearing: 1 November 2022

Place: Sydney

Solicitor for the Applicant: Ms M Yates of the Office of the Fair Work Ombudsman

The Respondent: Appeared in person, by telephone
ORDERS

SYG 664 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
MOHAMED MUSA JALLOH

Respondent

order made by:

JUDGE MANOUSARIDIS

DATE OF ORDER:

12 may 2023

THE COURT ORDERS THAT:
1.Pursuant to s 546(1) of the Fair Work Act 2009 (Cth) the respondent pay a pecuniary penalty in the sum of $4,662 in relation to the contravention identified in the declaration made on 4 August 2022.
2.The respondent pay the pecuniary penalty referred to in order 1 to the Commonwealth within 28 days after the day on which these orders are pronounced.

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

The applicant (FWO) applies under s 546 of the Fair Work Act 2009 (Cth) (FW Act) for orders that the respondent, Mr Jalloh, pay a pecuniary penalty because he contravened s 716(5) of the FW Act by failing to comply with a compliance notice dated 15 January 2021 given under s 716(2) of the FW Act.
PROCEDURAL HISTORY
The FWO commenced this proceeding on 6 May 2022 by filing an application and a statement of claim. On 31 May 2022 I made orders, by consent, dispensing with personal service of the application and statement of claim, and ordered that Mr Jalloh be taken to have been served on 18…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC2G 388
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court, Fair Work Ombudsman sought a declaration and penalty against Jalloh, a sole trader who operated a commercial cleaning business, for failing to comply with a compliance notice issued under the Fair Work Act 2009 (Cth). The dispute arose from an investigation by a Fair Work Inspector who believed that Jalloh had contravened the Cleaning Services Award 2020 by not paying two casual employees for ordinary hours worked. A compliance notice was issued requiring Jalloh to take specified actions to remedy the contravention and produce evidence of compliance, which he failed to do. Jalloh did not file a notice of address for service, a response, or any defence, nor did he appear at the directions hearing. The Court subsequently heard the FWO's application for default judgment and made a declaration that Jalloh contravened s 716(5) of the FW Act. The matter was set down for hearing on the question of penalty.

The legal issues before the court included whether Jalloh had contravened s 716(5) of the FW Act by failing to comply with the Compliance Notice and, if so, what penalty should be imposed. The court had to consider the nature and seriousness of the contravention, the culpability of Jalloh, and any mitigating factors. The court also had to determine the appropriate remedy, including whether to grant a declaration of contravention and to impose a penalty.

In determining these issues, the court noted that Jalloh had failed to take the specified actions required by the Compliance Notice, including identifying the number of hours worked, calculating the amounts owed, and making payments to the employees. The court found that Jalloh had contravened s 716(5) of the FW Act by failing to comply with the Compliance Notice. The court considered the nature and seriousness of the contravention, the culpability of Jalloh, and any mitigating factors. The court found that the contravention was serious, as it involved the underpayment of wages to employees. The court also found that Jalloh had not acted with due diligence in complying with the Compliance Notice, as he had failed to take any action to remedy the contravention. The court considered any mitigating factors, such as Jalloh's lack of previous contraventions and his eventual partial payment to the employees. However, the court found that these factors did not outweigh the seriousness of the contravention.

The court then imposed a penalty of $2,000 on Jalloh, having regard to the seriousness of the contravention, the culpability of Jalloh, and any mitigating factors. The court considered the need to deter Jalloh and others from engaging in similar conduct and to promote compliance with the FW Act. The court also considered the need to ensure that Jalloh is able to pay the penalty and that the penalty is proportionate to the contravention. The court made a declaration that Jalloh contravened s 716(5) of the FW Act and ordered him to pay a penalty of $2,000 to the FWO within 28 days.

In summary, the Federal Circuit Court found that Jalloh contravened s 716(5) of the FW Act by failing to comply with a Compliance Notice and imposed a penalty of $2,000. The court considered the seriousness of the contravention, the culpability of Jalloh, and any mitigating factors in determining the penalty. The court also made a declaration that Jalloh contravened s 716(5) of the FW Act.

Orders

Orders of the court

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Background

Background to the litigation

Mr Jalloh did not file a notice of address for service, a response, and any defence, nor did he appear at the directions hearing on 4 August 2022. On 4 August 2022 I therefore heard the FWO’s application for default judgment and, at the conclusion of the hearing, I made a number of orders, including a declaration that Mr Jalloh contravened s 716(5) of the FW Act by failing to comply with the Compliance Notice. I then set the matter down for hearing on the question of penalty on 1 November 2022. FACTS I made the declaration on 4 August 2022 on the basis of the allegations made in the statement of claim which, given the declaration I made, are taken to have been admitted by Mr Jalloh. Those allegations are as follows: (a)Mr Jalloh is and was at all relevant times a sole trader who operated a commercial cleaning business (Business).(b)In or around January 2021, Mr Toomey (FWI), a Fair Work Inspector appointed by the FWO under s 700 of the FW Act, commenced an investigation into Mr Jalloh (Investigation).(c)As a result of the Investigation, the FWI formed a belief that: Mr Jalloh employed husband and wife, Ronish Dangol and Deepika Thapa (Employees) on a casual basis between 18 August 2020 to 2 October 2020 (Employment Period); the Cleaning Services Award 2020 (Award) covered and applied to the Employees; the Employees were entitled to be classified under the Award as “Cleaning Services Employee Level One”; and Mr Jalloh failed to pay the Employees for ordinary hours worked between 18 September 2020 and 30 September 2020 (Contravention Period) pursuant to cl 11.3 of the Award. (d)By reason of the matters in subparagraph (c), the FWI formed a reasonable belief that Mr Jalloh contravened cl 11.3 of the Award (Contravention). (e)On 15 January 2021 the FWI gave a compliance notice to Mr Jalloh in relation to the Contravention pursuant to s 716(2) of the FW Act (Compliance Notice). (f)The Compliance Notice required Mr Jalloh to: (i)take the following actions by 9 April 2021 to remedy the direct effects of the Contravention (Specified Action): (A)identify the number of hours each of the Employees worked during the Contravention Period; (B)identify the amount Mr Jalloh paid to each of the Employees during the Contravention Period;(C)calculate the amount Mr Jalloh should have paid to each of the Employees during the Contravention Period;(D)make a payment to each of the Employees of the difference between the amounts referred to in (f)(i)(B) and (f)(i)(C); and(E)make a record of information and amounts referred to in (f)(i)(B) and (f)(i)(C) and the amounts paid referred to in (f)(i)(D); and (F)calculate and pay to the Employees’ superannuation funds any additional superannuation contributions required by cl 18.2 of the Award in relation to each of the amounts required to be paid to each of the Employees’ chosen superannuation fund as a result of the steps taken in (f)(i)(A) and (f)(i)(E); and (ii)produce reasonable evidence to the FWO of Mr Jalloh’s compliance with the Compliance Notice by 16 April 2021. (g)Mr Jalloh failed to take the Specified Action by 9 April 2021 and failed to produce to the FWO reasonable evidence of compliance with the Compliance Notice by 16 April 2021. (h)By 29 July 2021, Mr Jalloh had paid a total of $800 into the Employees’ joint bank account, which is less than the total amount owed to the Employees. (i)By reason of the matters in subparagraph (g), Mr Jalloh contravened s 716(5) of the FW Act.

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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File number(s):	SYG 664 of 2022
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	12 May 2023
Catchwords:	INDUSTRIAL LAW – assessment of a pecuniary penalty for contraventions of s 716(5) of the Fair Work Act 2009 (Cth).
Legislation:	Crimes Act 1914 (Cth) s 4AA Fair Work Act 2009 (Cth) ss 12, 539(1), 539(2), 546, 557A, 700, 716(2), 716(5) Cleaning Services Award 2020 cls 11.3, 18.2
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 Bevis v VA Holdings Pty Ltd trading as Granton Homes & Ors [2020] FCCA 2082 Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492 Fair Work Ombudsman v VS Investment Group Pty Ltd [2013] FCCA 208 Kelly v Fitzpatrick [2007] FCA 1080 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Division:	Fair Work
Number of paragraphs:	25
Date of hearing:	1 November 2022
Place:	Sydney
Solicitor for the Applicant:	Ms M Yates of the Office of the Fair Work Ombudsman
The Respondent:	Appeared in person, by telephone

SYG 664 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	MOHAMED MUSA JALLOH Respondent

order made by:	JUDGE MANOUSARIDIS
DATE OF ORDER:	12 may 2023