FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v JAVA SPICE AUSTRALIA PTY LTD & ORS | [2015] FCCA 2930 |
| Catchwords: INDUSTRIAL LAW – Breach of terms of modern award – breach of notice requiring production of wage and employment records – failure to provide appropriate wage slips and pay wage allowances in respect of weekend and out of hours work – proceedings undefended – question of penalties to be imposed – one respondent undischarged bankrupt – matters to be taken into account in assessing appropriate penalties – employees concerned considered to be vulnerable to exploitation – consideration of general and specific deterrence. |
| Legislation: Fair Work Act 2009, s: 3(b) & (c), 687(1); 701; 712(1); 712(3); 536, 539(2), 700, Corporations Act 2001 (Cth) s: 109X(1)(b) |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | JAVA SPICE AUSTRALIA PTY LTD |
| Second Respondent: | MOYA BUCKLEY |
| Third Respondent: | PETER BUCKLEY |
| File Number: | DNG 55 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 3 September 2015 |
| Date of Last Submission: | 3 September 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 5 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Walker |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Counsel for the Respondents: | No appearance |
ORDERS
Order 7 of the Orders of Judge Brown dated 25 May 2015 is varied by deleting the words "Ms Fu and Ms Tseng" in paragraph 7(a) and inserting in their place the words "to the Applicant".
Pursuant to subsection 546(1) of the FW Act, the First Respondent pay a total pecuniary penalty fixed in the amount of $60,000.00.
Pursuant to subsection 546(1) of the FW Act, the Second Respondent pay a total pecuniary penalty fixed in the amount of $12,000.00.
Pursuant to subsection 546(1) of the FW Act, the Third Respondent pay a total pecuniary penalty in an amount fixed in the amount of $1,000.00.
Pursuant to subsection 546(3)(a) of the FW Act, the pecuniary penalties specified…
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- AGLC
- Fair Work Ombudsman v Java Spice Australia Pty Ltd [2015] FCCA 2930
- Case
- [2015] FCCA 2930
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether Java Spice Australia Pty Ltd and its directors had contravened the Fair Work Act by failing to pay the minimum lawful entitlements to Ms Tseng and Ms Fu. The court also had to consider the appropriate penalty to be imposed, taking into account factors such as the nature of the contraventions, the vulnerability of the employees, and the need for general deterrence.
Judge Brown found that the respondents had contravened the Fair Work Act. The court noted the lack of contrition, corrective action, or cooperation from the respondents, including their failure to reimburse the underpaid employees or cooperate with the court. The court emphasised the importance of general deterrence, particularly in cases involving vulnerable employees such as itinerant backpackers in the hospitality industry, who are susceptible to exploitation due to their unfamiliarity with Australian employment laws and contexts. The court considered that a significant penalty was necessary to deter other employers from engaging in similar conduct.
The court ordered Java Spice Australia Pty Ltd to pay penalties for the contraventions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Mr and Mrs Buckley were the only directors of Java Spice. Both worked in the business. Ms Buckley seems to have had the greater managerial role, overseeing staff. As such, Ms Buckley in particular was fully cognisant of all that occurred in the business.h) Contrition, corrective action and cooperation with authorities There is no evidence of any cooperation, by the respondents, with Ms Gribben, when the complaints of Ms Tseng and Ms Fu were being investigated or subsequently after these proceedings were instituted. In particular, no documents have been provided and both Mr Buckley and Ms Buckley have failed to cooperate with the court. They have filed no documents. More significantly, the respondents have taken no steps to reimburse Ms Tseng or Ms Fu in respect of the moneys due to them. I do not know if either remains in Australia. If they have left this country, they are likely to have departed with a poor view of Australian employers or at least of employers in Darwin. In all these circumstances, there is no evidence of any contrition on the part of the respondents. As such, it is not proper that the appropriate penalty, for the offending in this matter, be discounted in any way by dint of cooperation or contrition demonstrated by the respondents. i)General deterrence One of the central purposes of imposing a civil penalty, in proceedings such as these, is to deter other employers from embarking on a similar course of conduct to that engaged upon by the transgressing employer. The role of general deterrence in fixing appropriate penalty is demonstrated by what Lander J said in Ponzio v B & P Caelli Constructions Pty Ltd[28] namely:“In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend…. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty... “(citations removed)[28] Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [93] approved by Mansfield J in Lifestyle SA (supra) at [154] In my view, in this particular case, issues of general deterrence loom large. This is a case concerning compliance with minimum employment standards applicable to two highly vulnerable employees. In my view, iterant backpackers are likely to be extremely vulnerable to exploitation by unscrupulous employers, particularly in the hospitality industry. Backpackers are often keen to augment their savings through casual employment. The turnover of workers, in the hospitality industry, particularly in tourist areas such as Darwin, is likely to be high. Such potential workers are likely to be informally recruited and be unaware of their workplace rights because of their unfamiliarity with the Australian employment context.