FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Lobos (No 2) [2023] FedCFamC2G 285
ORDERS
SYG 504 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: MARIANO EZEQUIEL LOBOS
First Respondent
JAMIE LOBOS
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
20 April 2023
THE COURT ORDERS THAT:
1.Pursuant to s 546(1) of the Fair Work Act 2009 (Cth) (Act):
(a)the first respondent pay a pecuniary penalty of $5,661 for his contravention of s 716(5) of the Act, as declared by the Court on 15 July 2022; and
(b)the second respondent pay a pecuniary penalty of $5,661 for her involvement,…
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Details
- AGLC
- Fair Work Ombudsman v Lobos (No 2) [2023] FedCFamC2G 285
- Case
- [2023] FedCFamC2G 285
- Decision Date
CaseChat Overview and Summary
The case of Fair Work Ombudsman v Lobos (No 2) involved the Fair Work Ombudsman as the applicant and two respondents, Lobos, in a dispute over non-compliance with workplace regulations. The matter came before the Federal Circuit and Family Court of Australia, which was required to address the respondents' default in not adhering to the compliance notice and the subsequent failure to appear for the penalty hearing.
The primary legal issues the Court had to determine were whether the respondents were duly served with the July Orders and if they had been made sufficiently aware of the requirement to file any affidavit evidence or written submissions three weeks prior to the penalty hearing on 21 October 2022. Additionally, the Court needed to assess whether the respondents' failure to appear constituted a valid defence or if the applicant was entitled to the penalties sought under the Fair Work Act 2009.
The Court found that the respondents had indeed been served with the July Orders and were aware of the penalty hearing date. This conclusion was based on the content of the documents tendered as evidence, including an email chain and a letter dated 15 July 2022, which detailed the July Orders and the highlighted requirement to file any relevant evidence or submissions by 30 September 2022. Despite this, the respondents did not file any further documents and failed to appear at the hearing. Given this absence and lack of response, the Court proceeded to consider the applicant's claim for civil pecuniary penalties under section 546(1) of the Fair Work Act 2009.
The Court ruled in favour of the applicant, holding that the respondents' failure to appear and provide any defence or submissions warranted the imposition of the penalties sought. The respondents' absence and failure to comply with the Court's directions were deemed sufficient grounds to award the penalties as requested by the applicant. The Court thus granted the relief sought by the Fair Work Ombudsman.
The Court ordered that civil pecuniary penalties be imposed on the respondents in accordance with the applicant's claim. The exact amount of the penalties was left to be determined in further proceedings, reflecting the severity of the respondents' default and non-compliance with the legal requirements.
The primary legal issues the Court had to determine were whether the respondents were duly served with the July Orders and if they had been made sufficiently aware of the requirement to file any affidavit evidence or written submissions three weeks prior to the penalty hearing on 21 October 2022. Additionally, the Court needed to assess whether the respondents' failure to appear constituted a valid defence or if the applicant was entitled to the penalties sought under the Fair Work Act 2009.
The Court found that the respondents had indeed been served with the July Orders and were aware of the penalty hearing date. This conclusion was based on the content of the documents tendered as evidence, including an email chain and a letter dated 15 July 2022, which detailed the July Orders and the highlighted requirement to file any relevant evidence or submissions by 30 September 2022. Despite this, the respondents did not file any further documents and failed to appear at the hearing. Given this absence and lack of response, the Court proceeded to consider the applicant's claim for civil pecuniary penalties under section 546(1) of the Fair Work Act 2009.
The Court ruled in favour of the applicant, holding that the respondents' failure to appear and provide any defence or submissions warranted the imposition of the penalties sought. The respondents' absence and failure to comply with the Court's directions were deemed sufficient grounds to award the penalties as requested by the applicant. The Court thus granted the relief sought by the Fair Work Ombudsman.
The Court ordered that civil pecuniary penalties be imposed on the respondents in accordance with the applicant's claim. The exact amount of the penalties was left to be determined in further proceedings, reflecting the severity of the respondents' default and non-compliance with the legal requirements.
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
On 15 July 2022, at the conclusion of an application for default judgment, this Court delivered reasons for judgment (see Fair Work Ombudsman v Lobos [2022] FedCFamC2G 596 (default judgment)) and made orders (July Orders) and declarations that by reason of the respondents’ default: (a)the first respondent had contravened s 716(5) of the Act by failing to comply with a compliance notice given to him on 14 September 2021 (Compliance Notice); and(b)the second respondent was involved, within the meaning of s 550(2) of the Act, in the first respondent’s contravention, thereby contravening s 716(5) herself. The Compliance Notice required the first respondent to calculate and pay certain minimum entitlements under s 90(2) of the Act and the Road Transport and Distribution Award 2020 (Award) to a former employee, Mr Larkin (employee). By the July Orders (inter alia) the: (a)proceedings were adjourned to 10.15am on 21 October 2022 before me for further hearing in respect of the applicant’s claim under to s 546(1) of the Act, for civil pecuniary penalties for the declared contraventions; and (b)the applicant was required to serve a sealed copy of the July Orders on the respondents by close of business on 15 July 2022, by methods previously ordered by the Court to constitute substituted service in the absence of the second respondent having filed a Notice of Address for Service in the proceedings: see default judgment at [15] to [16] At the commencement of the hearing on 21 October 2022 there was no appearance by, or on behalf of the respondents, in the Microsoft Teams forum. Out of an abundance of caution, I had my Associate call the matter outside the Court, which also yielded no appearance. The solicitor for the applicant tendered three documents which were received into evidence, namely: (a)an email chain between the solicitor for the applicant to the respondents spanning 8 July 2022 to 14 July, which was marked Exhibit “1A”; (b)a letter from lawyers for the applicant to the respondents dated 15 July 2022 serving the July Orders, which was marked as Exhibit “2A”; and (c)emails from the solicitor for the applicant to the respondents dated 15 July 2022, 9 September 2022 and 18 October 2022, which was marked Exhibit “3A”. From an email dated 15 July 2022 (which is the last email in Exhibit “3A”) together with Exhibit “2A” (which was the attachment thereto) I am satisfied that the respondents were served with the July Orders and were therefore on notice of the penalty hearing on 21 October 2022. I am also satisfied from the content of Exhibit “2A”, that salient parts of the July Orders were highlighted to the respondents as requiring their attention, namely that any Affidavit evidence or written submissions on the issue of penalty should be filed and served three weeks before the hearing, being 30 September 2022. The respondents did not avail themselves of that opportunity and have filed no further documents in the proceedings.
Ratio Decidendi
Legal Principle Established
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