FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Jenny Global Pty Ltd [2022] FedCFamC2G 472
File number(s): MLG 3027 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 17 June 2022 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) (“the Act”) – application for default judgment – contraventions of ss 45 and 536(1) of the Act - whether penalty should be imposed and level of penalty to be imposed – consideration of nature and circumstances of the conduct – where absence of any contrition, corrective action or cooperation with enforcement authorities – the need for specific deterrence exaggerated in circumstances where directors found previously to have contravened workplace laws – penalty order made Legislation: Fair Work Act 2009 (Cth) ss 45, 536, 539, 545, 546, 547, 557, 559, 718A
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 44
Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) rr 4.03, 4.04, 6.01, 6.08, 6.11 13.04, 13.05
General Retail Industry Award 2010 cll 13.2, 17, 29.2, 29.4
Crimes Act 1914 (Cth) s 4AA
Cases cited: Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13
Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665; [2006] FCA 1427
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56
Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461; [2010] FCAFC 39
Fair Work Ombudsman v Malevi Pty Ltd & Ors [2020] FCCA 2875
Fair Work Ombudsman v Jenni International Pty Ltd & Anor (No. 2) [2020] FCCA 2924
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7.
Rathner, in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626
Macquarie Bank Limited v Seagle (2005) 146 FCR 400; [2005] FCA 1239
Phonographic Performance ltd v Maitra (1998) 41 IPR 225
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 26 May 2022 Date of hearing: 26 May 2022 Place: Melbourne Applicant Fair Work Ombudsman Respondent No appearance ORDERS
MLG 3027 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: JENNY GLOBAL PTY LTD (ACN 617 886 727)
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
17 JUNE 2022
THE COURT DECLARES THAT:
1.Upon the admissions which the Respondent is taken to have made by reason of its default pursuant to r 13.04(2) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth), the Respondent contravened the following civil remedy provisions of the Fair Work Act 2009 (Cth) (“FW Act”):
(a)section 45 of the FW Act
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- Case
- [2022] FedCFamC2G 472
- Decision Date
CaseChat Overview and Summary
The court examined the characteristics of an application for default judgment, which relies on the claim as pleaded by the applicant and in the absence of a defence. The court noted that the requirement for a contradictor is met if there is a party with an interest to oppose the relief being sought. In this case, the court found that the FWO's statement of claim complied with the rules of pleading and properly established a cause of action. The court concluded that it was appropriate to make declarations to record its disapproval of the contravening conduct, as suggested by Kiefel J in Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd.
The court found that it was appropriate to make orders requiring the respondent to compensate the FWO for loss suffered by the employee due to the contraventions of the FW Act, with interest on this amount. The FWO would then be responsible for locating and making the payment to the employee. The court also determined that the statutory course of conduct provision under s 557(1) of the FW Act applied, as the contraventions arose from a single course of conduct by the respondent.
The court ordered Jenny Global Pty Ltd to pay compensation to the FWO, who would then distribute the amount to the affected employee, along with interest. The court also ordered the respondent to pay a pecuniary penalty. The court emphasised that the declarations were made based on the respondent's admissions due to its non-compliance with the rules of Court. The court's decision reflected its disapproval of the contravening conduct and provided a clear record of the contraventions.
Orders
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Background to the litigation
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Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
I am satisfied that the statement of claim filed in this matter and upon which the applicant relies complies with the rules of pleading and properly pleads a cause of action that supports the granting of relief. In particular, I am satisfied that the facts alleged in the statement of claim establish that the respondent contravened s 45 and s 536(1) of the FW Act.SHOULD DECLARATIONS BE MADE? It is not in doubt that this Court has a wide discretion to make declarations, including in circumstances where due to its default, the respondent is deemed to have made admissions. In this respect, there is no requirement, as there once was, for there to be a proper contradictor before declaratory relief can be granted. The requirement for a contradictor is met if there is a party who had an interest to oppose the declaratory relief that was being sought.[6] However, it has been recognised that in exercising appropriate caution when considering declaratory relief, the particular characteristics of an application for default judgment should be borne in mind. In particular, default judgment is given on the basis of the claim as pleaded by the applicant and in the absence of a defence or contradictory evidence. Accordingly, it is appropriate to make clear, as the FWO has proposed, that there has been no adjudication on the merits of the applicant’s claims by including wording in the declaration to the effect that the declarations are made “upon admissions which the respondent in question is taken to have made consequent upon its non-compliance with the requirements of the rules of Court”, as suggested by Kiefel J, as her Honour then was, in Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2006] FCA 1427 at [59].[6] Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56 at [30] per Greenwood, Logan and Yates JJ. Although there is room to doubt whether, in fact, declarations serve the educative and cautionary purpose that the FWO attributes to them (that presupposes that meaningful numbers of employers read and understand the import of judgments and orders made), I am satisfied that this is an appropriate case for declaratory relief, if for no other reason than to record the Court’s disapproval of the contravening conduct.ORDERS REQUIRING THE RESPONDENT TO RECTIFY UNDERPAYMENT I am satisfied that it is appropriate to make orders that require the respondent to pay compensation to the FWO (who is then to locate and make the payment to the employee) for loss suffered by the employee because of the contraventions of the FW Act and that interest be paid on this amount.PECUNIARY PENALTY Grouping The statutory course of conduct provision under s 557(1) recognises that two or more contraventions of a civil remedy provision of the FW Act are taken to constitute a single contravention if:(a)the contraventions are committed by the same person; and (b)the contraventions arose out of a single course of conduct by the person.