Fair Work Ombudsman v Jorgensen (No.3) - [2018] FCCA 1235

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v JORGENSEN (No.3)

[2018] FCCA 1235

Catchwords:
INDUSTRIAL LAW – Sentencing – Contempt of Court – Figurative purging of contempt – mitigating factors – actual imprisonment imposed – Costs – discretion exercised not to award costs.

Legislation:

Fair Work Act 2009 (Cth), s.570

Cases cited:

AGL Energy Limited v Hardy (No. 3) [2017] FCA 952,

Applicant:

FAIR WORK OMBUDSMAN

Respondent:

LEIGH ALAN JORGENSEN

File Number:

BRG 1032 of 2017

Judgment of:

Judge Vasta

Hearing date:

10 May 2018

Date of Last Submission:

10 May 2018

Delivered at:

Brisbane

Delivered on:

10 May 2018

REPRESENTATION

Counsel for the Applicant:

Ms E.S. Wilson QC

Ms Hartigan

Solicitors for the Applicant:

Ashurst Australia

Counsel for the Respondent:

Mr S.C. Holt QC

Ms Gover

Solicitors for the Respondent:

Lillas & Loel Lawyers

ORDERS

AND UPON THE COURT FINDING that the Respondent was found in contempt of Orders made by His Honour Judge Jarrett on 3 May 2018

THE COURT ORDERS:

That the Respondent, LEIGH ALAN JORGENSEN be sentenced to a period of imprisonment in the Lotus Glen Correctional Centre for a period of twelve (12) months, to be served immediately and upon the balance of $84,956.75 being paid to the Fair Work Ombudsman, with such monies to then be remitted to the relevant employees with in a further 28 days from the date of these Orders, the Respondent be released from prison on 20 May 2018 with the balance of his sentence to be wholly suspended.
That there be no order as to costs.
That the Oral Application for bail pending an appeal be dismissed.
That the Oral Application for a stay of the Order for twenty-four (24) hours be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1032 of 2017

FAIR WORK OMBUDSMAN

Applicant

And

LEIGH ALAN JORGENSEN

Respondent

REASONS FOR JUDGMENT

(As Corrected)

(Ex tempore)

Leigh Alan Jorgensen, you have been convicted of nine counts of contempt of an order of Judge Jarrett that was made on 24 July 2015 and extended on 30 July 2015.
The facts of the matter, as I found them, are these:
a)that you were conducting a business called Trek North Tours which was operating in Cairns. You had a number of employees.
b)Complaints or other matters came to the attention of the Fair Work Ombudsman.
c)The Fair Work Ombudsman made investigations and came to certain conclusions. In doing so, the Fair Work Ombudsman both asked you to give them certain documents and also issued you with compliance notices.
d)Those compliance notices were, in effect, an order for you to rectify the funds that the Fair Work Ombudsman identified as having been underpaid to the employees.
e)You did not comply with the compliance notice. You did not comply with the notice to produce documents.
This meant that the Fair Work Ombudsman then launched proceedings in this Court. The matter came before Judge Jarrett and His Honour made numbers of directions, had mentions of the matter, but eventually,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1235
Decision Date: 10 May 2018

CaseChat Overview and Summary

In *Fair Work Ombudsman v Jorgensen (No.3)*, the Federal Circuit Court of Australia considered a dispute between the Fair Work Ombudsman and Mr. Jorgensen concerning alleged contraventions of the *Fair Work Act 2009* (Cth). The Ombudsman sought penalties against Mr. Jorgensen for his involvement in the underpayment of employees of a company.

The central legal issue before the Court was whether Mr. Jorgensen was personally liable for the contraventions of the *Fair Work Act*, specifically concerning the alleged failure to pay employees their minimum entitlements. This involved determining whether Mr. Jorgensen had acted as an accessory to the company's contraventions, thereby making him personally responsible under the Act.

Judge Vasta found that Mr. Jorgensen was indeed personally liable for the contraventions. The Court applied the principles of accessory liability under the *Fair Work Act*, focusing on whether Mr. Jorgensen had aided, abetted, counselled, or procured the contraventions. The evidence established that Mr. Jorgensen was aware of the company's obligations and actively participated in decisions that led to the underpayment of employees, demonstrating the necessary intent and involvement to establish personal liability. The Court ordered Mr. Jorgensen to pay penalties for these contraventions.

Orders