Fair Work Ombudsman v Jor Trading Pty Ltd

[2021] FCCA 1069

FEDERAL CIRCUIT COURT OF AUSTRALIA

Fair Work Ombudsman v JOR Trading Pty Ltd [2021] FCCA 1069

File number(s):

SYG 157 of 2021

Judgment of:

JUDGE DRIVER

Date of judgment:

19 May 2021

Catchwords:

PRACTICE AND PROCEDURE – Default – failure to file a notice of address and a response – non compliance with court orders – grant of final relief.   

Legislation:

Fair Work Act 2009 (Cth) ss 545, 547, 550, 716

Federal Circuit Court Rules 2001 (Cth)

Number of paragraphs:

4

Date of hearing:

19 May 2021

Place:

Sydney

Solicitor for the Applicant:

Ms M Yates of Office of the Fair Work Ombudsman

No appearance by or on behalf of the Respondents

ORDERS

SYG 157 of 2021

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

JOR TRADING PTY LTD

First Respondent

JAME NATHAN O'ROURKE

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	19 MAY 2021

THE COURT DECLARES THAT:

1.The respondents failed to comply with orders 2 and 3 made on 9 March 2021 within the time stipulated.

2.The respondents have not complied with orders 1 and 2 made on 14 April 2021.

3.The respondents are in default for the purposes of rule 13.03A(2)(b)(i), (ii) and (iii) of the Federal Circuit Court Rules 2001 (Cth).

4.For the purposes of rule 13.03B(c) of the Federal Circuit Court Rules 2001 (Cth), the applicant is entitled to the relief claimed in the Statement of Claim filed on 1 February 2021 other than in relation to penalty, and the Court is satisfied that it has the power to grant it.

5.The first respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (Fair Work Act), by failing to comply with the Compliance Notice issued on 4 September 2020 (Compliance Notice).

6.The second respondent was involved, within the meaning of s 550(2) of the Fair Work Act, in the contravention by the first respondent in Order 5.

THE COURT ORDERS THAT:

1.Pursuant to s 545(1) of the Fair Work Act, the first respondent take the steps that were required by the Compliance Notice within 28 days from the date of this order, by:

(a)calculating and paying the outstanding amounts it was required to pay to Mr Stuart Yeates in respect of each of the entitlements and for the period specified in the Compliance Notice;

(b)calculating and paying into Mr Yeates’ nominated superannuation fund the additional superannuation contributions required to be paid on the outstanding entitlements referred to Order 1(a) (as required by clause 30.2 of the Restaurant Award); and

(c)preparing and producing to the applicant a schedule outlining its calculations of the outstanding entitlements and additional superannuation contributions required to be paid to Mr Yeates and providing proof that the outstanding entitlements and additional superannuation contributions were rectified as set out in Orders 1(a) and 1(b).

2.Pursuant to s 547(2) of the Fair Work Act, the first respondent pay to Mr Yeates interest on the amounts owed to Mr Yeates pursuant to Order 1(a) within 28 days of the date of this order.

3.The remainder of the application is referred to a registrar of the Court for a conciliation conference under rule 10.05 of the Federal Circuit Court Rules 2001 (Cth).

4.Parties have liberty to apply for further orders or directions on three days notice.

REASONS FOR JUDGMENT
(revised from transcript)

JUDGE DRIVER :

1. In this matter there has been default by the respondents for the purposes of rule 13.03A(2)(b)(1), (b)(2) and (b)(3) of the Federal Circuit Court Rules 2001 (Cth) on two occasions. The first default occurred in relation to orders 2 and 3, made on 9 March 2021. The second default occurred in relation to subsequent orders with alternative dates, in particular orders 1 and 2, made on 14 April 2021. Those defaults having occurred, the Court’s powers under rule 13.03B in particular, subrule (2)(c) are enlivened.

2. There has been no appearance by the second respondent, Mr O’Rourke, at today’s hearing although he has appeared previously, both on his own behalf and on behalf of the first respondent, JOR Trading.  There is no explanation for Mr O’Rourke’s non-attendance today and attempts to contact him by telephone have failed.  In previous directions hearings however, he has not disputed the compliance notice issued by the Fair Work Ombudsman.  The particulars of the compliance notice and the failure to comply with it are set out in the Fair Work Ombudsman’s statement of claim, filed on 1 February 2021. 

3. The relief sought in that statement of claim is set out at part (D), in particular paragraphs 18 and 19.   Save for subparagraph (c), I am satisfied that the relief sought is relief to which the Fair Work Ombudsman is fairly entitled and which the Court can grant.  I will make orders finding the default and orders granting the relief sought in paragraph 18 and paragraph 19, subparagraphs (a) and (b) of the statement of claim. 

4. The only outstanding issues are the question of penalties and possibly costs.  Those are confined issues.  Rather than put the parties to the expense of a hearing on those limited issues, I have decided to seek the engagement of the parties to resolve them at a conciliation conference before a registrar. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       21 May 2021