Fair Work Ombudsman v Jetbus Airport Shuttle Pty Ltd (No 2)
[2021] FedCFamC2G 370
•15 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Jetbus Airport Shuttle Pty Ltd (No 2) [2021] FedCFamC2G 370
File number(s): MLG 987 of 2021 Judgment of: JUDGE BURCHARDT Date of judgment: 15 December 2021 Catchwords: INDUSTRIAL LAW – Ex tempore ruling on penalties in circumstances where respondent failed to participate in the proceeding. Legislation: Fair Work Act 2009 (Cth) Cases cited: Fair Work Ombudsman v NSH North Pty Ltd Trading as New Shanghai Charlestown [2017] FCA 1301 Division: Division 2 General Federal Law Number of paragraphs: 9 Date of last submission/s: 15 December 2021 Date of hearing: 15 December 2021 Place: Dandenong Advocate for the Applicant: Ms Midwood Solicitor for the Applicant: Office of the Fair Work Ombudsman Solicitor for the Respondent: The Respondent did not appear 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:
15 DECEMBER 202115 DECEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to section 546 of the Fair Work Act 2009 (Cth), the respondent pay a pecuniary penalty to the Commonwealth with respect to its contravention of s 716(5) of the Act in the amount of $23,310 within 28 days of the date of this order;
2.The applicant have liberty to apply on seven days’ notice in the event that the above order is not complied with.
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
Revised from TranscriptJUDGE BURCHARDT
On 4 October 2021, I gave an ex tempore Judgment which arose, as the head note pointed out, from the respondent’s default within the meaning of the Court’s rules. The respondent had failed to take a number of steps required by the rules. And accordingly, pursuant to the Court’s powers, I made a number of orders which included an order that the respondent take steps required by the compliance notice previously served on it. By paying 19-odd thousand dollars to the former employee, Ms Kaur, plus interest and superannuation to the relevant fund.
I adjourned the matter to today and made orders for the applicant to file and serve evidence and submissions relating to penalty by 18 October, and the respondent, likewise, by 22 November. I granted liberty to apply. The applicant filed materials on 18 October, entirely consistent with those orders, but the respondent, and more particularly, Mr Kutlu, who is the moving force, so to speak, of the respondent, has not only not complied with the orders, but has not, in any way, communicated with either the Court or Ms Midwood’s instructors.
The respondent, Mr Kutlu, had sought an adjournment on the basis of ill health, which I did not grant, on the previous occasion, but he has not filed anything at all on this one. The written submissions of the applicant traverse in what I would describe as relatively orthodox terms the approach of the Court to penalty. It is not necessary to set these helpful submissions out seriatim, but it is sufficient for me, perhaps, to say that I think that they are a helpful compilation of the all too copious authority as to how the Court should proceed and the sort of things to which the Court should have regard in so proceeding.
I endorse the five-step methodology set out by Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd Trading as New Shanghai Charlestown [2017] FCA 1301, and I also endorse the factors relevant to penalties set out in the written submissions with the authorities referred to therein. I agree with the written submissions that the compliance notice regime is important. It is important for the reasons set out in the written submissions, but most particularly, had the respondent complied, the applicant could not have brought civil penalty proceedings and the respondent would not have been taken to have contravened the Act.
There has never been any question about service of the notice, and the failure to comply has had a number of effects, the most noteworthy of which is that Ms Kaur has not received any moneys whatever as yet, and one must infer, is most unlikely, regrettably, to do so I accept the written submission that the non-compliance is deliberate, given the circumstances. Furthermore, I also accept that the respondent has not taken the opportunity available to it to put on material as to his financial circumstances, although, there is one minor caveat to that to which I shall return. And in any event, true importance of compliances notices, in my opinion, is a matter that requires greater emphasis than the capacity and size of the respondent to pay any penalty that might be imposed.
There has been no meaningful engagement by the respondent with the applicant throughout this entire process or, indeed, before proceedings commenced. The amount required to be paid to Ms Kaur has simply not been paid. The failure to comply with the compliance notice undermines the Fair Work Act’s enforcement framework as the written submissions correctly point out, and this is serious. The loss to the employee was a substantial one, and the failure to make any rectification is likewise important, and general deterrence is also important, noting, of course, that the process of setting penalties is first and last to be set at a level that would be likely to act as a deterrent to prevent similar contraventions, both by the contravener and by any likeminded person or organisation.
I accept the written submissions that, notwithstanding the matters to which I shall come shortly as to the respondent’s circumstances, specific deterrence has a role to play. The written submissions recommend a penalty of 70 per cent of the applicable maximum of $33,300 and it is, of course, not a matter of the Court acting as a rubber stamp. The Court is required to consider the various matters raise and apply what has been described as an instinctive synthesis to them nonetheless I think that the penalty of 70 per cent, in this particular case, bearing in mind the matters in the written submissions of the applicant and the undeniable facts of the case, do indeed warrant a penalty of 70 per cent.
Accordingly, I do intend to make orders 1 and 2 as sought by the applicant in annexure A. There is, however, one matter to which I should make reference before ending. On 11 March 2021, Mr Kutlu sent an email to the office of the Fair Work Ombudsman. It asserts that Jetbus ceased all trading since December 2019, and it asserts that Mr Kutlu suffered a stroke in September 2019. He refers to significant obesity and related difficulties and the fact that, in 2020, his Crohn's disease had required a medical procedure which was unavailable in Australia at the time. And the email concludes:
As a result, I have relocated permanently abroad in June 2020 to Istanbul and will not return back to Australia.
It might be thought that that correspondence suggests, first of all, that the respondent will never trade again, but it is still registered as the materials in the applicant’s affidavit point out. There is nothing objective to support the health difficulties that Mr Kutlu has said obtain. He has not put on any medical information. In my opinion, the fact that he is presently in Istanbul does not, in any way, militate against the Court taking what would otherwise be appropriate steps to bring this matter to a conclusion.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 21 December 2021
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