FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Klinsic Constructions Pty Limited (No 2) [2023] FedCFamC2G 283
File number(s): SYG 273 of 2022 Judgment of: JUDGE GIVEN Date of judgment: 20 April 2023 Catchwords: INDUSTRIAL LAW – Imposition of penalty for failure to comply with notice – underpayment of wage and redundancy entitlements – antagonistic approach by respondents to statutory regulator and employee – where remorse directed more to being penalised than to subject of contraventions Legislation: Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth) s 4AA
Crimes Amendment (Penalty Unit) Act2022 (Cth)
Fair Work Act 2009 (Cth) ss 117, 546, 550, 557, 716
Cases cited: Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith 165 FCR 560
Fair Work Ombudsman v ACN 146 435 118 Pty Ltd (No 2) [2013] FCCA 1270
Fair Work Ombudsman v ASGBRIS Pty Ltd [2020] FCCA 553
Fair Work Ombudsman v Blu Hornsby Pty Ltd [2016] FCCA 1150
Fair Work Ombudsman v Chia Tung Development Corp Ltd [2016] FCCA 3457
Fair Work Ombudsman v Jaycee Trading Pty Ltd (No. 2) [2013] FCCA 2128
Fair Work Ombudsman v Klinsic Constructions Pty Limited [2022] FedCFamC2G 622
Fair Work Ombudsman v Nobrace Centre Pty Ltd (No 2) [2019] FCCA 2144
Fair Work Ombudsman v NSH North Pty Ltd (t/as New Shanghai Charlestown) (2017) 275 IR 148
Kelly v Atanaskovic Hartnell Corporate Services Pty Ltd (No 3) [2023] FedCFamC2G
Kelly v Fitzpatrick 166 IR 14
Molina v Galloway [2022] FedCFamC2G 904
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of hearing: 28 October 2022 Place: Sydney Solicitor for the Applicant: Mr A Morris of the Fair Work Ombudsman The First Respondent: Mr J Klinsic (second respondent) The Second Respondent: In person ORDERS
SYG 273 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: KLINSIC CONSTRUCTIONS PTY LIMITED
First Respondent
JOHN KLINSIC
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
20 April2023
THE COURT ORDERS THAT:
(1)
Pursuant to s 546(1) of the Fair Work Act 2009 (Cth) (Act), the first respondent must pay a pecuniary penalty of $18,981 to the Consolidated Revenue Fund of the Commonwealth of Australia, within 60 days of this order for its contravention of
s 716(5) of the Act, as declared by the Court on 20 July 2022.
(2)Pursuant to s 546(1) of the Act, the second respondent must pay a pecuniary penalty of $3,762 to the Consolidated Revenue…
Keep reading for free
Create a free CaseChat account to read Fair Work Ombudsman v Klinsic Constructions Pty Limited (No... and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] FedCFamC2G 283
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to resolve included the determination of the appropriate level of penalty for the respondent's non-compliance with the Compliance Notice. The court had to consider the seriousness of the breach, the respondent’s level of culpability, and the necessity for general and specific deterrence. The court examined the respondent’s failure to take corrective action despite the notice and the ongoing non-compliance as of the penalty hearing date. Furthermore, the court had to weigh the need to maintain the integrity of statutory enforcement mechanisms against the respondent’s limited engagement with the proceedings.
The court found that the penalties imposed were justified given the respondent's serious non-compliance, which necessitated the commencement of litigation. The court noted the respondent's lack of meaningful engagement and ongoing non-compliance as significant factors. The need for general deterrence to uphold the statutory enforcement mechanisms and specific deterrence to ensure compliance by the respondent in the future were also considered. The court determined that the penalties were necessary to send a clear message to employers in the building and construction industry about the consequences of non-compliance. The court also highlighted the importance of deterring the respondent, who remained registered and a director of the company, from repeating such breaches.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.