FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Kassiou Constructions Pty Ltd [2025] FedCFamC2G 808
File number(s): DNG 12 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 29 May 2025 Catchwords: INDUSTRIAL LAW – FAIR WORK – failure to comply with a compliance notice – application for imposition of pecuniary penalties – consideration of factors relevant to penalty – pecuniary penalties ordered Legislation: Fair Work Act 2009 (Cth) ss 3(b), 90(2), 546(1), 716(5)
Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 (Cth) r 6.06(1), 13.05(2),
13.10(1)(b)(ii)
Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640
Fair Work Ombudsman v Big Daddy’s Pty Ltd [2022] FedCFamC2G 786
Fair Work Ombudsman v Corporation Sun Pty Ltd & Anor [2020] FCCA at [35]
Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) [2017] FCA 1242
Fair Work Ombudsman v Hess [2021] FCCA 1883
Fair Work Ombudsman v Hiyi Pty Ltd & Ors [2016] FCCA 1634
Fair Work Ombudsman v Rum Runner Trading Pty Ltd [2018] FCCA 1129
Fair Work Ombudsman v Soma Kitchen & Anor (No.2) [2020] FCCA 2583
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 6 May 2025 Place: Darwin Solicitor for the Applicant: Mr Witton of the Australian Government Solicitor For the First Respondent: The First Respondent did not appear Solicitor for the Second Respondent: Mr Close of McCormack Lawyers
Table of Corrections 18 June 2025 In paragraph 15 the words ‘that it’ in ‘the Office of the Fair Work Ombudsman that it did not have any evidence’ have been removed. 18 June 2025 In paragraph 31 the word spelt ‘$um’ has been changed to ‘maximum’. 18 June 2025 In paragraph 36 the words ‘and failures to comply with record-keeping obligations’ have been removed. 18 June 2025 In paragraph 51 the words ‘to pay’ have been inserted into the sentence after ‘however I accept that he intended’. 18 June 2025 In paragraph 80 the numbering of the second subparagraph has been changed to ‘(b)’. ORDERS
DNG 12 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUSDMAN
Applicant
AND: KASSIOU CONSTRUCTIONS PTY LTD
First Respondent
ILIAS KASSIOU
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
29 MAY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 546(1) of the Act, within twenty-eight (28) days of this order:
(a)Kassiou Constructions pay a pecuniary penalty to the Commonwealth in the sum of $37,560; and
(b)Ilias Kassiou pay a pecuniary penalty to the Commonwealth in the sum of $6,573.
Note: The form of the order…
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- AGLC
- Fair Work Ombudsman v Kassiou Constructions Pty Ltd [2025] FedCFamC2G 808
- Case
- [2025] FedCFamC2G 808
- Decision Date
CaseChat Overview and Summary
The court had to decide whether to impose pecuniary penalties and, if so, the amount of the penalty. The court also had to consider the factors relevant to the penalty, including the seriousness of the contravention, the degree of contrition shown by the directors, and the need to ensure compliance with minimum standards by the provisions of an effective means for investigation and enforcement of employee entitlements. The court found that the contravention was serious and undermined the compliance notice regime. The directors showed some contrition, but the company did not cooperate with the proceedings or take any corrective action. The court considered these factors and ordered a pecuniary penalty of $15,000 against the company and a penalty of $5,000 against the director, Ilias Kassiou, with a 25% discount for his cooperation and contrition.
The court ordered that Kassiou Constructions Pty Ltd pay $15,000 and Ilias Kassiou pay $5,000, with a 25% discount, within 28 days. The court also ordered that the costs of the proceeding be paid by Kassiou Constructions Pty Ltd within 14 days.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In the circumstances, I consider that the failure to comply with the Compliance Notice is serious, and undermines the compliance notice regime. Contrition, co-operation and corrective action Ilias Kassiou’s response to his involvement in Kassiou Constructions’ non-compliance with the Compliance Notice was initially consistent with the personal disharmony between the directors. He wrongly focused on subjective concepts of unfair treatment toward himself, however I accept that he intended to pay Mr Andrade his leave entitlements upon the sale of 22 Billygoat Street or Deane Crescent. Whilst I accept that Ilias Kassiou believed Mr Andrade would be paid his leave entitlements upon the sale of either of these properties, he has not directly acknowledged that the outstanding leave entitlements have still not been calculated, more than 4 years after Mr Andrade’s employment ended, and more than 1 ½ years after the Compliance Notice was issued. Notwithstanding Ilias Kassiou’s complete lack of engagement with the Office of the Fair Work Ombudsman initially, including in relation to service of the proceedings upon him, I accept his decision to admit and not contest the proceedings is evidence of contrition, notwithstanding that Mr Andrade’s entitlements have not been calculated. Further, Ilias Kassiou ultimately gave evidence in these proceedings that he regrets the position of Mr Andrade, and would pay his entitlement if he was able to do so. Notwithstanding that evidence was given by way of affidavit only on 17 April 2025, and there is no evidence that Ilias Kassiou has expressed these sentiments to Mr Andrade directly, I accept it as evidence of some contrition. Kassiou Constructions has made no response to the non-compliance with the Compliance Notice. Kassiou Constructions has been entirely unresponsive with the Office of the Fair Work Ombudsman, notwithstanding numerous communications. Kassiou Constructions failed to comply with orders for the filing and service of material. It failed to attend the penalty hearing. The penalty hearing was held against the background of default judgment being ordered, and without the benefit of any formal admissions, evidence or submissions made by the company. In the circumstances, I find no basis to apply any mitigation in the pecuniary penalty to Kassiou Constructions, and I accept that the penalty to be ordered for Ilias Kassiou ought to be discounted, having regard to his co-operation in the proceedings, and the evidence of his contrition.The need to ensure compliance with minimum standards by the provisions of an effective means for investigation and enforcement of employee entitlements It is an object of the Act to promote a guaranteed safety net of fair, relevant, and enforceable minimum terms and conditions for all employees.[8] The efficacy of statutory notices would be hindered or made redundant if the recipients perceive that failure to comply will not carry meaningful consequences.[9][8] See s 3(b).[9] Fair Work Ombudsman v Big Daddy’s Pty Ltd [2022] FedCFamC2G 786 at [42].