Fair Work Ombudsman v Jetbus Airport Shuttle

[2021] FedCFamC2G 124

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Jetbus Airport Shuttle [2021] FedCFamC2G 124

File number(s):

MLG 987 of 2021

Judgment of:

JUDGE BURCHARDT

Date of judgment:

4 October 2021

Catchwords:

INDUSTRIAL LAW – ex-tempore judgement arising from respondent’s being in default within meaning of relevant rules of Court – orders made as sought by applicant

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Division:

Division 2 General Federal Law

Number of paragraphs:

9

Date of last submission/s:

4 October 2021

Date of hearing:

4 October 2021

Place:

Dandenong

Respondent:

The Respondent did not appear

Solicitor for the Applicant:

Office of the Fair Work Ombudsman

Counsel for the Applicant:

Ms Midwood

ORDERS

MLG 987 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	JETBUS AIRPORT SHUTTLE PTY. LTD. Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	4 OCTOBER 2021

THE COURT ORDERS THAT:

1.Default judgment is entered for the Applicant against the Respondent pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) by reason of the Respondent’s default pursuant to rule 13.04(2) of the Rules by its failure to each:

(a)file and serve a notice of address for service as required by rule 6.01(1) of the Rules;

(b)file and serve a response or defence within 28 days of service as required by rules 4.03(1) and 4.04(3) of the Rules;

(c)comply with an order of the Court in the proceedings, being orders 1 and 2 of the orders of the Court dated 7 June 2021 in accordance with rule 13.04(2)(b)(iii) of the Rules;

(d)attend the directions hearing before Judge Burchardt at 4.00pm on 26 July 2021; and

(e)defend the proceedings with due diligence in accordance with rule 13.04(2)(b)(vii) of the Rules.

2.Upon admissions taken to have been made by reason of the Respondent’s default, the Court declares that the Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with a compliance notice given to the Respondent on 4 February 2021 (Compliance Notice).

3.The Court orders that:

(a)pursuant to section 545(1) of the FW Act, the Respondent take the steps that were required by the Compliance Notice within 28 days of this order, by:

(i)paying to the Applicant the outstanding entitlements of $19,763.75 gross that was required to be paid to Ms Sandeep Kaur (Employee);

(ii)calculating and paying superannuation contributions into the Employee’s nominated superannuation fund, or a superannuation fund as provided for by the Clerks – Private Sector Award 2020, for any additional superannuation contributions it was required to pay; and

(iii)preparing and producing evidence to the Applicant that the outstanding entitlements, as set out in paragraphs (i) and (ii) above, have been rectified;

(b)pursuant to section 547(2) of the FW Act, the Respondent pay interest in the sum of $321.91 to the Applicant on the amount owed to the Employee pursuant to paragraph 3(a)(i) above within 28 days of this order;

(c)the Applicant distribute to the Employee the amounts paid pursuant to paragraphs 3(a)(i) and (b) above within 90 days of the payment being made;

(d)the matter is adjourned to 15 December 2021 at 4.00 pm AEDT by Microsoft Teams for a further hearing in respect of the Applicant’s claim for penalties to be imposed on the Respondent for the contravention declared at paragraph 2 above;

(e)the Applicant file and serve evidence and submissions relating to penalty by no later than 18 October 2021;

(f)the Respondent file and serve evidence and submissions relating to penalty by no later than 22 November 2021; and

(g)the parties have liberty to apply

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
Revised From Transcript

JUDGE BURCHARDT

1. By an application filed on 13 May, the Fair Work Ombudsman sought various orders arising, essentially, out of noncompliance with a compliance notice alleged as against Jetbus Airport Shuttle Pty. Ltd.  From the materials filed, the matters asserted in the statement of claim are prima facie made out.  In procedural terms, what then happened was that on 7 June, the matter was adjourned until 4.00 pm that day so that we could hear from the respondent who was living in Istanbul – or at least present in Istanbul. 

2. And indeed, when the matter came back later that afternoon, Mr Kutlu, who is – as I understand it – the – as it were – operative officer of the respondent – appeared here.  I made orders, relevantly, for the respondent to file and serve a notice of address for service, response and defence, and for any materials in reply.  The matter was then adjourned till 26 July 2021 4.00 pm Australian Eastern Standard Time, 9.00 am in Istanbul. 

3. As I recall it – without having the transcript – Mr Kutlu assured the court that he would be able to comply with those orders, and would indeed seek legal advice to assist him to do so.  Notwithstanding this, however, the respondent did not comply with any of those orders.  And when the matter came back on the adjourned date – which I would point out Mr Kutlu was well aware of, because he was in court when I made the orders – he did not appear. 

4. On oral application, I made orders that the applicant – the Fair Work Ombudsman – file and serve an application in a case for default judgment together with affidavit evidence by 9 August.  I gave time for the respondent to respond, and listed the matter to today by 4.00 pm Australian Eastern Standard Time by Microsoft Teams. 

5. It is sufficient to say that the applicant has complied with those orders and filed the application in a case seeking default judgment, and supporting affidavit material which, in my view, convincingly shows that Mr Kutlu – and through him, the respondent – is well aware of today’s hearing, and what this hearing is about.  And indeed, even if there was any doubt as to that, on 30 September, last Thursday, Mr Kutlu emailed my associate with a message in, relevantly, these terms: “I cannot appear at the interim hearing listed for Monday, 4 October, as I'm currently residing in isolation, infected with COVID in Istanbul. I seek an adjournment, and sincerely apologise”.

6. My associate replied on the Friday, 1 October, notifying Mr Kutlu that I denied his request for an adjournment as the matter is being heard by Microsoft Teams, and parties can attend in isolation, and reminding him that we would proceed at 4.00 pm Australian Eastern Standard Time.  A further response was received from Mr Kutlu today, at 7.09 am, which suggests – although that may be – I think that must be our time, but it is not quite clear to me if that is the case or not – saying:  “Dear associate, it is not the matter of isolation that is of concern.  I am unable due to my health deterioration and COVID symptoms”.

7. There are several things to be said.  First of all, there is no medical certificate or other indication as to quite what the nature of the asserted difficulties with Mr Kutlu’s health are.  And even if that is indeed the case, there is no explanation whatsoever as to why he is so substantially in default of the orders that have already been made.  In those circumstances, it is clear that the Fair Work Ombudsman is entitled – pursuant to the court’s rules – to any remedy that is properly available to it pursuant to the matters in the statement of claim, and/or to any judgment that the court is minded to regard as proper to make.

8. The orders sought by the Fair Work Ombudsman are entirely consistent with the matters in the statement of the claim.  They are supported by affidavit material already filed by Ms Midwood. I will go back a step.  The orders sought are entirely consistent with the matters contained in the statement of claim, and accordingly, pursuant to the court’s rule, I have the power to make those orders, and propose to do so.

9. If Mr Kutlu – or, so to speak, the respondent – takes issue with these orders, they have their rights open to them pursuant to the rules, because they are not present.  That is all it a bit garbled as it is when one does things in this rather hotchpotch extempore way, but that is what I am doing, and that is why I am doing it, and put the orders in those terms. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Dated:       4 October 2021