Fair Work Ombudsman v LROC Builders Pty Ltd
[2025] FedCFamC2G 1516
•15 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v LROC Builders Pty Ltd [2025] FedCFamC2G 1516
File number: MLG 1554 of 2023 Judgment of: JUDGE SYMONS Date of judgment: 15 September 2025 Catchwords: INDUSTRIAL LAW – Fair Work – failure to comply with compliance notices – application for civil penalties and orders for rectification under s 545(1) of the Fair Work Act 2009 (Cth) – where respondents engaged only briefly in the proceeding and declarations made on the basis of their deemed admissions – where first respondent continues to trade and remains registered – where no evidence of contrition or introspection about the contraventions – where need for specific and general deterrence – jurisdiction under s 545(2)(b) not engaged where no quantifiable loss causally linked to the contraventions – orders for penalties and for a proportion of the penalties to be redirected to the employees identified in the compliance notices Legislation: Fair Work Act 2009 (Cth), ss 3, 44, 45, 65, 76, 90, 99, 116, 134, 539, 545, 546, 550, 557, 570, 682, 716, 717, 793
Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth)
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2025 (Cth), rr 5.11, 24.04
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) r 17.05
Federal Court Rules 2011 (Cth), r 5.23
Fair Work Legislation Amendment (Closing Loopholes) Bill 2023
Building and Construction General On-site Award 2020, cll 10, 19.1, 19.3, 29.4, 31.2
Building and Construction General On-site Award 2010, cll 19.1, 25.1, 36.2, 37.1
Cases cited: Australian Building and Construction Commission v Pattinson (2022) 274 CLR 450; [2022] HCA 13
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46
Dafallah v Fair Work Commission [2014] (2014) 225 FCR 559; FCA 328
Fair Work Ombudsman v ABMENG Pty Ltd (No 2) [2024] FedCFamC2G 1287
Fair Work Ombudsman v Annangrove Road Pty Ltd (in liq) (No 2) [2024] FedCFamC2G 854
Fair Work Ombudsman v Carers Portland Inc [2023] FedCFamC2G 620
Fair Work Ombudsman v Carers Portland Inc (No 2) [2024] FedCFamC2G 72
Fair Work Ombudsman v Clark Projects Pty Ltd [2025] FedCFamC2G 24
Fair Work Ombudsman v Cobra Security Services Pty Ltd [2024] FedCFamC2G 336
Fair Work Ombudsman v Double Hao International Pty Ltd (No 2) [2024] FedCFamC2G 943
Fair Work Ombudsman v Express Cars Direct Australia Wide Pty Ltd (No 2) [2024] FedCFamC2G 1179
Fair Work Ombudsman v Pure Telecom Pty Ltd [2024] FedCFamC2G 664
Fair Work Ombudsman v Soma Kitchen Pty Ltd & Anor (No. 2) [2020] FCCA 2583
Fair Work Ombudsman v Taing [2024] FedCFamC2G 270
Fair Work Ombudsman v Territory Tough Pty Ltd [2024] FedCFamC2G 743
Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290
Kidd v Kwek (No 2) [2024] FCA 194
Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481
Trade Practices Commission v CSR Ltd (1991) ATPR 41-076, [1990] FCA 521
Yes Insurance Group Pty Ltd v Fair Work Ombudsman [2024] FCA 1366
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of last submissions: 11 December 2024 Date of hearing: 11 December 2024 Place: Melbourne Counsel for the Applicant: Mr C McDermott Solicitor for the Applicant Office of the Fair Work Ombudsman Solicitor for the Respondents: No appearance by or on behalf of the Respondents ORDERS
MLG 1554 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: LROC BUILDERS PTY LTD (ACN 644 258 855)
First Respondent
LACHLAN ROBERT OLIVER
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
15 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.Within 28 days of the date of these orders, and pursuant to s 546(1) of the Fair Work Act 2009 (Cth) (FW Act), the first respondent pay a pecuniary penalty of $53,625 to the Commonwealth of Australia (Commonwealth) for each of its contraventions of s 716(5) of the FW Act the subject of declarations made on 12 September 2024.
2.Within 28 days of the date of these orders, and pursuant to s 546(1) of the FW Act, the second respondent pay a pecuniary penalty of $13,722 to the Commonwealth for each of his contraventions of s 716(5) of the FW Act the subject of declarations made on 12 September 2024.
3.Within 56 days of receipt of the pecuniary penalty referred to in order 1, and pursuant to s 546(3)(c) of the FW Act, the applicant is to redistribute from the pecuniary penalty paid in order 1:
(a)the amount of $4,364.00 to Mr Benjamin Housden;
(b)the amount of $16,805.88 to Mr Aron Guanizo; and
(c)the amount of $25,218.73 to Mr Christopher Van Der Meer.
4.Within 56 days of receipt of the pecuniary penalty referred to in order 2, and pursuant to s 546(3)(c) of the FW Act, the applicant is to redistribute from the pecuniary penalty paid in order 2 the amount of $855.38 to Mr Mark Dooney.
5.The applicant has liberty to apply on three days’ notice in the event these orders are not complied with.
Note: The declarations made on 12 September 2024 were varied on 11 December 2024 under rule 17.05 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2025 (Cth), or to record a variation to the order pursuant to r 24.04 of the Rules.
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
The applicant, the Fair Work Ombudsman (FWO), applies under s 546(1) of the Fair Work Act 2009 (Cth) (FW Act) for orders that the respondents pay a pecuniary penalty because they contravened s 716(5) of the Act by failing to comply with three compliance notices (the Compliance Notices) given under s 716(2) of the Act. The FWO also seeks an order that the respondents take steps to “remedy the direct effects of their non-compliance” with the Compliance Notices by repaying the amounts which the FWO contends, are owed to the affected employees.
PROCEDURAL HISTORY
On 7 September 2023, the FWO commenced proceedings by filing an application and a statement of claim.
On 27 March 2024, the FWO filed an interlocutory application for default judgment against the respondents.
On 12 September 2024, the Court gave default judgment for the FWO for reasons given orally at the time. The orders and declarations made on 12 September 2024 were as follows:
THE COURT DECLARES THAT:
1.The Second Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) by failing to comply with the compliance notice issued on 6 April 2022.
2.The First Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) by failing to comply with the compliance notice issued on 2 December 2022.
3.The First Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) by failing to comply with the compliance notice issued on 1 March 2023.
4.The Second Respondent was involved, within the meaning of section 550(2) of the Fair Work Act 2009 (Cth), in the First Respondent’s contravention of 716(5) of the Fair Work Act 2009 (Cth) declared at paragraph 2 above.
5.The Second Respondent was involved, within the meaning of section 550(2) of the Fair Work Act 2009 (Cth), in the First Respondent’s contravention of 716(5) of the Fair Work Act 2009 (Cth) declared at paragraph 3 above.
THE COURT ORDERS THAT:
1.The matter be listed for a penalty hearing before Judge Symons at the Federal Circuit and Family Court of Australia in Melbourne on 11 December 2024 at 10:00am on an estimate of half a day.
2.The Applicant file and serve evidence and submissions on the question of penalty and any further relief sought by no later than 3 October 2024.
3.The Respondents file and serve evidence and responsive submissions by no later than 21 November 2024.
4.The Applicant file and serve any reply material by no later than 5 December 2024.
As foreshadowed by these orders, the matter returned before me for hearing on penalty and relief on 11 December 2024. Mr McDermott of counsel appeared for the FWO. There was no appearance by or on behalf of either respondent.
BACKGROUND
The first respondent, LROC Builders Pty Ltd (LROC), operates a building and construction business based in Carrum Downs, Victoria.
The second respondent, Mr Oliver, is (and was at relevant times) the sole director, secretary and shareholder of LROC; the person responsible for the operation, management and control of the business; the person responsible for ensuring LROC complied with its legal obligations under the Act; the person responsible for corresponding with the FWO in respect of its investigation and the compliance notices; and a person whose conduct is taken to be that of LROC pursuant to s 793(1) of the Act.
Mr Oliver was also at relevant times, a sole trader who operated a building and construction business under the name “LR Oliver Carpentry”.
First investigation
In around March 2022, Fair Work Inspector Andrew Semmler (FWI Semmler) commenced an investigation into Mr Oliver concerning his employment of Mr Mark Dooney.[1]
[1] Statement of Claim filed 7 September 2023 (SOC), [5].
Based on the information obtained during the investigation, FWI Semmler formed the following beliefs:[2]
(a)Mr Oliver employed Mr Dooney as a full-time weekly hire employee from 1 July 2021 to 27 August 2021;
(b)the Building and Construction General On-site Award 2020 (2020 Award) covered and applied to Mr Oliver in respect of the employment of Mr Dooney;
(c)from 1 July 2021 to 27 August 2021, Mr Dooney was classified under the 2020 Award as a “level 3 carpenter”.
(d)At the end of this employment period, Mr Oliver failed to pay Mr Dooney the annual leave entitlements which he had accrued but had not taken.
[2] SOC, [6(a)-(d)].
By reason of the matters referred to in paragraph 10 of these reasons, FWI Semmler formed a reasonable belief within the meaning of s 716(1) of the FW Act that Mr Oliver had contravened s 90(2) of the FW Act by failing to pay Mr Dooney accrued and untaken annual leave on termination.
On 6 April 2022, FWI Semmler issued a compliance notice to Mr Oliver (First Compliance Notice), requiring him to calculate and rectify the underpayments owing to Mr Dooney by 11 May 2022.
On 8 April 2022, Mr Oliver provided the requested calculations, confirming that $855.38 was owed.[3] However, since that time, neither respondent has paid this amount to Mr Dooney.
[3] Annexure AS-7 of the affidavit of FWI Andrew Semmler dated 1 October 2024 (first Semmler affidavit).
Second investigation
In around September 2022, Fair Work Inspector Jay Chin (FWI Chin) commenced an investigation into LROC concerning its employment of Mr Benjamin Housden.[4]
[4] SOC, [9].
Based on the information obtained during the investigation, FWI Chin formed the following beliefs:[5]
[5] SOC, [10(a)-(d)].
(a)LROC employed Mr Housden as a full-time weekly hire employee from 4 December 2020 to 15 January 2021;
(b)The Building and Construction General On-site Award 2010 (2010 Award) covered and applied to LROC in respect of the employment of Mr Housden;
(c)from 4 December 2020 to 15 January 2021, Mr Housden was classified under the 2010 Award as a “level 3 construction worker”;
(d)LROC failed to pay Mr Housden:
(i)the applicable minimum wage for ordinary hours worked;
(ii)the relevant fares and travel allowance expenses;
(iii)the relevant overtime rate for the first two hours of overtime worked on a weekday;
(iv)the relevant overtime rate for overtime worked on a weekday after two hours of overtime;
(v)the relevant overtime rate for the first two hours of overtime worked before 12pm on a Saturday;
(vi)the relevant overtime rate for overtime worked before 12pm on a Saturday after two hours of overtime;
(vii)the relevant overtime rate for overtime worked after 12pm on a Saturday; and
(viii)any accrued, but untaken, annual leave as well as annual leave loading when his employment ended.
By reason of the matters referred to in paragraph 14 of these reasons, FWI Chin formed a reasonable belief within the meaning of s 716(1) of the Act that LROC contravened s 90(2) of the FW Act by failing to pay Mr Housden accrued and untaken annual leave on termination, and clauses 19.1, 25.1, 36.2 and 37.1 of the 2010 Award by failing to pay Mr Housden the minimum wage for ordinary hours worked, the relevant fares and travel allowances, and the relevant overtime rates for overtime hours worked.
On 2 December 2022, the FWO issued a compliance notice to LROC (Second Compliance Notice), requiring LROC Builders to calculate and rectify the underpayments owing to Mr Housden by 6 January 2023.
LROC did not comply with the Second Compliance Notice in any respect.
Third investigation
On around 11 April 2022, FWI Chin commenced an investigation into LROC concerning its employment of Mr Christopher Van Der Meer and Mr Aron Guanizo.[6]
[6] SOC, [12].
Based on the information obtained during the investigation, FWI Chin formed the following beliefs:
(a)during the period 13 December 2018 to 8 April 2022 LROC employed Mr Van Der Meer as a full-time weekly hire;
(b)during the period 13 December 2018 to 8 April 2022 LROC employed Mr Guanizo as a full-time weekly hire;
(c)the 2020 Award covered and applied to LROC in respect of the employment of Mr Van Der Meer and Mr Guanizo;
(d)from 13 December 2018 to 8 April 2022, Mr Van Der Meer was classified as a construction worker Level 3 and a full-time weekly hire employee within the meaning of clause 10 of the 2020 Award;
(e)from 13 December 2018 to 8 April 2022, Mr Guanizo was first classified as a construction worker Level 1a, before progressing to a Level 1b worker after 3 months in the industry. During this period, Mr Guanizo was classified as a full-time weekly hire employee within the meaning of clause 10 of the 2020 Award;
(f)LROC failed to pay Mr Van Der Meer:
(i)the applicable ordinary hourly rate for ordinary hours worked;
(ii)the relevant overtime rate for the first two hours of overtime worked on a weekday;
(iii)the relevant overtime rate for overtime worked on a weekday after two hours of overtime;
(iv)for annual leave taken during his employment, plus annual leave loading;
(v)for personal/carer’s leave taken during his employment;
(vi)for ordinary hours he was absent on a public holiday; and
(vii)any accrued, but untaken, annual leave as well as annual leave loading when his employment ended;
(g)LROC failed to pay Mr Guanizo:
(i)the applicable ordinary hourly rate for ordinary hours worked;
(ii)the relevant overtime rate for the first two hours of overtime worked on a weekday;
(iii)the relevant overtime rate for overtime worked on a weekday after two hours of overtime;
(iv)for annual leave taken during his employment, plus annual leave loading;
(v)for personal/carer’s leave taken during his employment;
(vi)for ordinary hours he was absent on a public holiday; and
(vii)any accrued, but untaken, annual leave as well as annual leave loading when his employment ended.
By reason of the matters referred to in paragraph 20 of these reasons, FWI Chin formed a reasonable belief within the meaning of s 716(1) of the FW Act that LROC contravened s 90(2) of the FW Act by failing to pay Mr Van Der Meer accrued and untaken annual leave on termination, clauses 19.1(b), 19.3(b) and 29.4(a) of the 2020 Award by failing to pay Mr Van Der Meer the minimum wage for ordinary hours worked and the relevant overtime rates for overtime hours worked, and ss 90(1), 99, 116 and 90(2) of the FW Act by failing to pay Mr Van Der Meer annual or personal/carer’s leave taken during employment, for ordinary hours absent on a public holiday and the full amount that would have been payable to him had he taken his accrued annual leave when his employment ended, including annual leave loading under clause 31.2(b) of the 2020 Award.
By reason of the matters referred to in paragraph 19 of these reasons, FWI Chin also formed a reasonable belief within the meaning of s 716(1) of the FW Act that LROC contravened s 90(2) of the FW Act by failing to pay Mr Guanizo accrued and untaken annual leave on termination, clauses 19.1(b), 19.3(b) and 29.4(a) of the 2020 Award by failing to pay Mr Guanizo the minimum wage for ordinary hours worked and the relevant overtime rates for overtime hours worked, and ss 90(1), 99, 116 and 90(2) of the FW Act by failing to pay Mr Guanizo annual or personal/carer’s leave taken during employment, for ordinary hours absent on a public holiday and the full amount that would have been payable to him had he taken his accrued annual leave when his employment ended, including annual leave loading under clause 31.2(b) of the 2020 Award.
On 1 March 2023, the FWO issued a Compliance Notice to LROC (Third Compliance Notice), requiring LROC Builders to calculate and rectify the underpayments owing to Mr Van Der Meer and Mr Guanizo by 29 March 2023.
LROC did not comply with the Third Compliance Notice in any respect.
THE MATERIAL BEFORE THE COURT
The FWO relied on the application and statement of claim filed on 7 September 2023, an affidavit of Zoe Clippingdale dated 27 March 2024, an affidavit of FWI Chin dated 1 October 2024 (first Chin affidavit), an affidavit of FWI Semmler dated 1 October 2024 (first Semmler affidavit), a further affidavit of FWI Chin dated 3 October 2024 (second Chin affidavit), and a further affidavit of FWI Semmler dated 3 October 2024 (second Semmler affidavit), a written outline of submissions filed 3 October 2024, and a further written outline of submissions filed on 4 December 2024.
Despite the orders made on 12 September 2024 (reproduced at [4]) that the respondents by 21 November 2024 file affidavits and responsive submissions directed at penalty, the respondents did not file any submissions or appear at the hearing on penalty and relief. I determined in these circumstances that it was appropriate to hear and determine the matter without the participation of either respondent.
PRINCIPLES RELATING TO PENALTY
The primary purpose of deterrence was re-emphasised by the High Court in Australian Building and Construction Commission v Pattinson(2022) 274 CLR 450. In that decision, the majority upheld the Commissioner’s appeal and confirmed that the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with provisions of the Act by those responsible and by (like) others. The High Court rejected the approach implicit in the decision of the Full Court (the subject of the appeal) that a penalty must be proportionate to the seriousness of the conduct that constituted the contravention. The majority held instead that: “[t]he power conferred by s 546 of the Act is not subject to constraints drawn from the criminal law and there is no place for a ‘notion of proportionality’ in a civil penalty regime”.[7] However, the High Court did accept that s 546 requires the Court to ensure that any penalty “strikes a reasonable balance between deterrence and oppressive severity”.[8] It was only in this more qualified sense that the concept of “proportionality” had any role to play.
[7] Australian Building and Construction Commission v Pattinson (2022) 274 CLR 450 (Pattinson), [10].
[8] Pattinson, [41].
The High Court in Pattinson also referred to the several factors identified by French J in Trade Practices Commission v CSR Ltd [1990] FCA 521 which informed the assessment of a penalty of an appropriate deterrent value. The list revealed that both the circumstances of the contravener and the circumstances of the contravention may be relevant to the assessment of whether the maximum level of deterrence is called for.[9] However, the High Court repeated the caution that the list of possible relevant considerations should not be approached as a “rigid catalogue of matters for attention” and instead the task of the court remains to determine what is an “appropriate” penalty in the circumstances of the particular case.[10]
[9] Pattinson, [57].
[10] Pattinson, [18]–[19].
The FWO invited the Court – through its written outline and oral submissions – to adopt an approach which reflected the foregoing principles.
ASSESSMENT
The declarations made on 12 September 2024 record findings based on deemed admissions that LROC committed two contraventions of s 716(5) of the FW Act, and Mr Oliver committed (either primarily or pursuant to s 550(1) of the FW Act) three contraventions of s 716(5). The FWO submits that for the purpose of assessing penalty, each contravention should be treated separately.[11]
[11] Applicant’s Outline of Submissions filed 3 October 2024 (October submissions), [25].
As a threshold matter, the FWO notes that the course of conduct provision in s 557 of the FW Act does not apply to contraventions of s 716(5) of the FW Act.[12] Furthermore, the FWO submits that the respondents should not obtain the benefit of the common law “course of conduct” principle in circumstances where the respondents have failed to put on any evidence that might suggest the presence of factors that suggest a commonality to any of the transactions and where the following considerations militate against such a finding.
[12] Fair Work Act 2009 (Cth), ss 557(1)-(2).
First, the FWO notes that the Compliance Notices were issued separately over a period spanning under 12 months and related to different employees with different classifications under the 2010 Award and 2020 Award, and different entitlements.
Second, the First Compliance Notice was issued by a different Fair Work Inspector to the Second and Third Compliance Notices (who conducted separate investigations before issuing each Compliance Notice).
Third, each of the Compliance Notices required action to be taken that was specific to each employee, Mr Dooney, Mr Housden, Mr Van Der Meer, and Mr Guanizo (the Employees), and had separate timeframes for compliance, with the result that the obligations imposed by each Compliance Notice were separate and distinct and the resulting non-compliance with each of the Compliance Notices was also separate and distinct.
Fourth, as concerned Mr Oliver, his contravention in respect of the First Compliance Notice was as a primary contravener, whereas he was an accessory to LROC’s contraventions for failing to comply with the Second and Third Compliance Notices. The FWO submitted that these separate and distinct forms of liability warranted separate recognition and censure.
Nature, extent and circumstances of the contraventions
The FWO submits that the respondents’ failure to respond to the Second and Third Compliance Notices, and to make any payments with respect to the First, Second and Third Compliance Notices, should be considered serious. The FWO says that this conduct by both the first and second respondent demonstrates a disregard for their obligations under the FW Act and for its own authority as regulator.
The FWO emphasises that the contraventions concern two businesses and took place over a period of less than 12 months. They note that neither respondent has raised any dispute in relation to the underpayments identified in the Compliance Notices.
Deterrence
Specific deterrence is directed at the party who has contravened the provision. It is concerned with ensuring a contravening party is not prepared to engage in the contravening conduct in the future and operates on matters particular to the person or organisation concerned. General deterrence is concerned with ensuring, among other things, that the penalty is likely to act as a deterrence in preventing similar contraventions by like-minded persons or organisations. It has often been said that general deterrence must serve the intended purpose such that a penalty is not seen by others as just “the cost of doing business”[13] or an “acceptable cost of doing business”.[14]
[13] Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290, [27].
[14] Pattinson, [43] citing The Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [110].
There is a need for specific deterrence in this case. The evidence before the Court is that LROC continues to trade and remains a registered company.[15] Mr Oliver remains the sole director, secretary and shareholder of LROC as at 11 September 2024.[16] There is a real prospect that the respondents are currently responsible for the engagement of employees and have obligations under the Act and/or will assume that responsibility in the future.
[15] First Chin affidavit, [29].
[16] Annexure JC-16 of the first Chin affidavit.
As to general deterrence, I accept the submission of the FWO that it is necessary and appropriate for the Court to impose a penalty that signals to employers in the building and construction industry that non-compliance with statutory notices will not be tolerated. The FWO placed before the Court evidence that this industry is well-represented in compliance notice matters and that between July 2022 and June 2022 it accounted for 13.9% of all FWO disputes.[17]
[17] First Semmler affidavit, [19], [20]; Annexure AS-10.
Nature and extent of loss
The FWO submits that public funds have been expended by its commencement and pursuit of these proceedings, precipitated by the respondents’ failure to comply with any of the three Compliance Notices. The FWO relies on the comments of Judge Kendall in Fair Work Ombudsman v Soma Kitchen Pty Ltd & Anor (No. 2) [2020] FCCA 2583 at [39], in which his Honour stated that:
“…the ‘loss’ that is most relevant in this case is that which relates to the frustration and stultification of the statutory purpose behind s 716 of the Act. As noted above, the purpose of s 716 is to provide an alternative to litigation. That is, it is designed to prevent litigation. Litigation is timely and expensive. It is also not controversial that Court resources are limited and this Court actively promotes alternative resolution methods in order to reduce unnecessary expenditure. Here, that purpose has been systematically undermined”.
The FWO invites the Court to also take account of the loss flowing from the respondents’ failure to comply with the Compliance Notices which it submits can be assimilated to the amount which Mr Oliver calculated in respect of the First Compliance Notice and the amounts which the FWO calculated and then pleaded in the statement of claim, in respect of the Second and Third Compliance Notices. These amounts, which remain outstanding, are:
(a)$855.38 to Mr Dooney;[18]
(b)$4,364.00 to Mr Housden;[19]
(c)$25,218.73 to Mr Van Der Meer;[20]
(d)$16,805.88 to Mr Guanizo.[21]
[18] SOC, [44].
[19] SOC, [46(b)].
[20] SOC, [46(c)].
[21] SOC, [46(d)].
Corrective action, cooperation and contrition
The FWO relies on a catalogue of opportunities given to both Mr Oliver and to LROC to engage with the FWO and to comply with the statutory notices as evidence that neither party has behaved cooperatively and that their continued lack of compliance should be characterised as deliberate.
For example, in relation to Mr Oliver it is noted that the FWO sent emails to Mr Oliver on 7 April 2022 and 12 April 2022, before compliance with the First Compliance Notice was due and then again on 23, 25 and 26 May 2022 and 6 and 15 June 2022, after compliance with the First Compliance Notice was due.[22]
[22] Second Semmler affidavit, [3], [5]-[6], [8], [10]-[11].
The FWO notes that while Mr Oliver expressed an initial intention to pay the amount outstanding under the First Compliance Notice and acknowledged it was a small sum, he nonetheless has failed to remit this payment to Mr Dooney.
As far as LROC is concerned, the FWO asks the Court to take account of the documented attempts and efforts made by it to engage with LROC in relation to the Second and Third Compliance Notices. This includes multiple attempted phone calls to Mr Oliver, in his capacity as director of LROC, and emails sent before and after compliance with the Second Compliance Notice was due, and emails sent to LROC before and after compliance with the Third Compliance Notice was due.
The FWO submits that the respondents’ inaction necessitated the commencement of these proceedings and that once the proceeding was on foot, the uncooperative and dilatory conduct of the respondents continued. This was exemplified by the attempts made by the FWO to negotiate a statement of agreed facts with the respondents. The FWO notes that the respondents agreed initially to participate in the process of filing an agreed statement and orders were made by consent on 6 February 2024 to facilitate this occurring. However, the respondents did not sign the statement provided by the FWO or provide an alternate version for the FWO’s consideration. As a result, no agreement was reached, and the matter proceeded to default judgment.
Similar previous conduct
There is no evidence before me that the respondents have engaged in similar previous conduct. I therefore infer that it is a first offence for the respondents and will take that consideration into account.
The penalty range sought by the FWO
The FWO seeks that the Court impose penalties in the following amounts[23] and in circumstances where the maximum penalty for contraventions engaged in by Mr Oliver is in respect of the First Compliance Notice the amount of $6,660 and in respect of the Second and Third Compliance Notices the amount of $8,250 and the maximum penalty for contraventions engaged in by LROC is the amount of $41,250.
(a)$2,664 to $3,330 (40% to 50% of the maximum) be imposed on Mr Oliver in respect of his contravention of the First Compliance Notice;
(b)$24,750 to $28,875 (60% to 70% of the maximum) be imposed on LROC in respect of its contravention of the Second Compliance Notice;
(c)$4,950 to $5,775 (60% to 70% of the maximum) be imposed on Mr Oliver in respect of his involvement in LROC’s contravention of the Second Compliance Notice;
(d)$28,875 to $33,000 (70% to 80% of the maximum) be imposed on LROC in respect of its contravention of the Third Compliance Notice; and
(e)$5,775 to $6,600 (70% to 80% of the maximum) be imposed on Mr Oliver in respect of his involvement in LROC’s contravention of the Third Compliance Notice.
[23] October submissions, [57].
This translates to penalties in the range of $53,625 to $61,875 for LROC and $13,389 to $15,705 for Mr Oliver.
In the context of penalty range, the FWO brought to the attention of the Court the decision of Snaden J in Yes Insurance Group Pty Ltd v Fair Work Ombudsman [2024] FCA 1366 in which his Honour accepted the argument of the appellant employer that the penalties ordered by this Court for a contravention of s 716(5) of the FW Act were excessive. The FWO submitted that the judgment in Yes Insurance Group was clearly distinguishable on its facts and the penalties sought by the FWO remained consistent with the range of penalties sought for this type of contravention and in circumstances where there had been limited cooperation by the respondents, the penalties sought reflected non-compliance with multiple notices issued under s 716 of the FW Act and there remained a large quantum of alleged underpayments arising from the contraventions identified within these compliance notices.
CONCLUSION ON PENALTY
I accept that it is appropriate in this case to recognise five separate contraventions for the purpose of assessing penalty in recognition of the separate investigations which preceded their issue, the different underlying contraventions of industrial law and in the absence of any evidence or submission from the respondents that might support a different approach.
The complete failure of the respondents to engage with or respond to the Second and Third Compliance Notes is serious. Further, while Mr Oliver engaged sporadically with the regulator in connection with the First Compliance Notice, he did not ultimately take the steps required, notwithstanding his agreement that the amount of $855.38 was owing to the affected employee.
As I have earlier indicated, there is an obvious need for specific deterrence in this case which recognises the lack of evidence that the respondent, and particularly Mr Oliver, who is the human emanation of the first respondent, have reflected on their obligations under workplace laws and taken steps that demonstrate a changed attitude or which indicate that there would not be a repetition of the conduct captured by the Compliance Notices.
This is particularly the case where the prospect of repetition is not merely academic. The evidence before the Court is that LROC continues to trade and remains a registered company. I accept that general deterrence has a role to play in this case, based on my earlier observations about the propensity to non-compliance in the building and construction industry.
My approach to the assessment of penalty also takes account of the various species of loss that accrue in cases of this kind. There is the loss in time and resources that occurs with the commencement and continuation of this proceeding to final hearing on penalty. This was exaggerated by the respondents’ fleeting engagement with the FWO that led to the making of consent orders that the respondents then abandoned.
I am also prepared to acknowledge a loss to the affected employees of the opportunity to recover outstanding entitlements that would have been calculated by the respondents and remitted had they taken the steps identified in the Compliance Notices.
Furthermore, and relatedly, there is no evidence of cooperation, corrective action or contrition on the part of the respondents that might operate in their favour and justify a discount on, or a more benevolent approach to, penalty.
Upon reviewing the affidavit material relied upon by the FWO, I was struck by the efforts made by the regulator to engage in a constructive fashion with the respondents to obtain a non-litigious outcome. An illustration of this approach can be found in the following email sent by an officer from the Notice Assistance Team – Enforcement on 7 April 2022 to Mr Oliver. It read (formalities omitted):[24]
[24] Annexure AS-11 of the second Semmler affidavit.
I am writing to follow up with you in order to provide support with the attached Compliance Notice (CN) recently issued to OLIVER, LACHLAN ROBERT
The matter is regarding payment of monies owing to the employee named on the Compliance Notice, Mark Dooney
Please call me or let me know a suitable time so I can assist you with;
1.Understanding the contents of the Compliance Notice
2.Understanding what steps you now need to take and by when
3.Answering any questions you may have and provide any other assistance
There are a number of actions the Compliance Notice requires of the business, this one is pretty simple in terms of the Annual leave contraventions in the CN. I want to help you avoid any risk of you not meeting all of these requirements by their due date and am happy to work with a third party such as a bookkeeper or an accountant if necessary.
I am satisfied that despite these efforts, the conduct of the respondents was unhelpful, obstructive at times, and indicative of a failure to grapple with the responsibilities that inhere in an employer to pay employees in accordance with their lawful entitlements. This conduct provides the basis for a finding that the conduct of the respondents was deliberate, and this should reflect in the penalty.
I have considered whether the penalty range proposed by the FWO might involve overreach of the kind identified by Snaden J in Yes Insurance Group. In that case, the FWO had proposed penalties in the range of 70-80% available and the primary judge had settled at the lower boundary of that range. It appears that on appeal, the Federal Court was principally concerned with the fact that the employer in this appeal was a first-time contravener, the underpayment was not substantial and had been rectified (albeit late) and although not ultimately finding favour with the court, had a reasonable argument about why the modern award should not apply to its business. This was encapsulated by Snaden J’s conclusion at [96] that:
The penalties for which the FWO agitated were, by some margin, wholly outside the range of sentencing options that were properly available. I would not contemplate a penalty anywhere close to 80% of the maximum available for cooperative (or at least partly cooperative) first-time contraveners whose conduct, although wrong, involved a small sum, the non-payment of which was voluntarily corrected and not wholly without extenuating explanation.
Save for acknowledging that the respondents are first time contraveners, I am not burdened with the same mitigating considerations in this case and am firmly of the view that the objective of deterrence has an important role to play in this case. I consider that it is appropriate to fix penalties in the following amounts:
Mr Oliver Contravention Penalty % Penalty $ Contravention of the First Compliance Notice 45% $2,997 Involvement in LROC’s contravention of the Second Compliance Notice 60% $4,950 Involvement in LROC’s contravention of the Third Compliance Notice 70% $5,775 Total $13,722
LROC Contravention Penalty % Penalty $ Contravention of the Second Compliance Notice 60% $24,750 Contravention of the Third Compliance Notice 70% $28,875 Total $53,625
The respondents have placed no evidence before the Court as to their financial circumstances so there is no basis upon which these amounts should be adjusted to prevent an oppressive or crushing effect.
OTHER ORDERS
The FWO also seeks what it describes as “rectification orders” under s 545(1) of the FW Act which would be framed in terms of requiring LROC and Mr Oliver to pay the amounts they would have paid to the Employees (being those amounts identified at [41] above) had they taken the steps required of them under the Compliance Notices.
In seeking these orders, the FWO notes that there are conflicting decisions in this Court directed at whether such orders can be made. The decisions which do not support the making of such orders include Fair Work Ombudsman v Carers Portland Inc [2023] FedCFamC2G 620 and Fair Work Ombudsman v Carers Portland Inc (No 2) [2024] FedCFamC2G 72 which are the subject of an appeal and cross-appeal by the FWO and Fair Work Ombudsman v Taing[2024] FedCFamC2G 270 that is the subject of a separate appeal by the FWO but which was heard together with the Carers Portland appeals by the Federal Court in May 2025. Judgment in these appeals was reserved at the time of this decision.
The FWO acknowledges that the role of the Court, especially in light of the number of decisions going different ways, is to independently determine for itself whether it should accept the submissions of the FWO which rely primarily on the judgment and reasoning of Judge Camerson set out in paragraphs [57] to [68] of Fair Work Ombudsman v Pure Telecom Pty Ltd [2024] FedCFamC2G 664 in which his Honour held that the Carers Portland decisions, Taing and Fair Work Ombudsman v Cobra Security Services Pty Ltd [2024] FedCFamC2G 336 were wrongly decided on the question of the ability of the Court to make compensation orders following a contravention of s 716(5) of the FW Act.
Since the hearing of this matter there have been further decisions, some of which the FWO brought to the Court’s attention through correspondence to chambers (copied to the respondents), including (adopting the FWO’s description of their significance):
(1)Fair Work Ombudsman v ABMENG Pty Ltd (No 2) [2024] FedCFamC2G 1287 at [11], [37]-[38] (Judge Ladhams) in which the approach adopted in Pure Telecom was adopted, noting that the parties the subject of the compliance notice in question consented to orders requiring the amounts outstanding to the employees to be paid;
(2)three judgments where orders were made (pursuant to s 546(3) of the FW Act) for the payment of the pecuniary penalty to an employee the subject of a compliance notice issued under s 717: Fair Work Ombudsman v Territory Tough Pty Ltd [2024] FedCFamC2G 743 at [61]-[71] (Judge Liveris), Fair Work Ombudsman v Annangrove Road Pty Ltd (in liq) (No 2) [2024] FedCFamC2G 854 at [37]-[41](Judge Laing) and Fair Work Ombudsman v Double Hao International Pty Ltd (No 2) [2024] FedCFamC2G 943 at [10]-[17] (Judge Forbes);
(3)Fair Work Ombudsman v Clark Projects Pty Ltd [2025] FedCFamC2G 24, in which Judge Doust accepted that it was appropriate for the Court to make orders for the payment of compensation in circumstances (at [69]), where:
(a)the respondent had been on notice since the commencement of the proceeding of the quantum of the compensation sought by the applicant, and the basis of the calculation of that compensation;
(b)the respondent had an opportunity to be heard as to the making of any such orders and the quantum of any compensation to be ordered; and
(c)the respondent had declined to appear to defend the proceeding; and
(d)Judge Doust respectfully expressed her disagreement with the judgments in Carers Portland, Cobra Security and Taing (at [58]-[59], [63] and [67])
The FWO elaborates upon its principal submissions as follows. First, it is contended that there was a causal connection between each of LROC and Mr Oliver’s primary contraventions of s 716(5) of the FW Act and the amount of monetary compensation sought by the FWO in these proceedings. The causal connection is said to arise as follows:
(1)s 716 of the FW Act applies where an inspector has formed a reasonable belief that a person has contravened certain provisions.[25]
(2)pursuant to s 716(2)(a) of the FW Act, a compliance notice can require a person to “take specified action to remedy the direct effects of the contravention”.
(3)where an inspector forms a reasonable belief that a person has contravened a relevant provision by failing to pay to an employee the monetary entitlement provided by that provision, the “direct effects of the contravention” are that the employee has not received an amount which should have been paid to them. The actions required by the compliance notice to “remedy the direct effect of the contravention” are the calculation and payment of the monetary entitlement;
(4)in the present case, FWI Semmler and FWI Chin formed separate reasonable beliefs that LROC and Mr Oliver contravened provisions of the 2010 Award, 2020 Award, and the FW Act. FWI Semmler and FWI Chin issued the Compliance Notices in respect of those contraventions, requiring LROC and Mr Oliver to:
(a)calculate the amount that would have been payable to the Employees in respect of the entitlements under the 2010 Award, 2020 Award, and the FW Act; and
(b)pay the difference between the amounts calculated and the amounts already paid to the Employees;
(5)consistent with the reasoning in Pure Telecom at [60], the issuing of each Compliance Notice, formed on the respective reasonable belief in each case, gave rise to a secondary obligation to pay the amounts owing. FWI Semmler and FWI Chen’s reasonable belief in each case was not the subject of any review under s 717 and has not been challenged in this proceeding. Further, in respect of the First Compliance Notice, FWI Semmler’s reasonable belief that there was a contravention is in fact supported by Mr Oliver’s provision of calculations showing that an amount was owing;
(6)in determining whether to exercise the discretion conferred by s 545(1) of the FW Act to make an order awarding compensation for the loss suffered (as a result of the contravention of s 716(5) of the FW At by failing to comply with the notice issued under s 716(2)), it is appropriate to have regard to what is reasonable in the circumstances, and to what would have been likely to occur had the contravention of s 716(5) not occurred (referring to Dafallah v Fair Work Commission [2014] FCA 328 at [158]). In a money case such as this one, if the person to whom notice is given under s 716(2) complies with the notice, payment of the monetary entitlement is made to the employees. However, as discussed by Judge Cameron in Pure Telecom at [62], if the person to whom notice is given under s 716(2) fails to comply with the notice, the critical failure is that the monetary entitlement is not paid to the employees. The affected employees clearly suffer the loss of the entitlement, and it is appropriate for the FWO to seek compensation for it. That loss arises not from the failure to comply with the original provisions, but the failure to comply with each Compliance Notice.
[25] Fair Work Act 2009 (Cth), s 716(1).
Second, the FWO submits that for the reasons given by Lee J in Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 at [23]-[25], it is an error for a Court, when considering a question of causation of compensation such as under s 545 of the FW Act, to look at whether there is some “sole” or “single” cause or similar. Rather, compensation is appropriate if: (a) loss has been proven; (b) as a matter of fact or history, the proven contravention had a role in the happening of the loss; and (c) in terms of attribution of legal responsibility, there is no reason why the contravener should otherwise be not held liable.
Third, and in recognition of observations recorded in Carers Portland at [56], the FWO submits that awarding compensation in response to a breach of s 716(5) of the FW Act would not undermine the integrity of the FW Act.
The FWO notes that the objects of the FW Act include: “ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders”.[26] Modern awards “provide a fair and relevant minimum safety net of terms and conditions”.[27] The FWO’s legislated functions include “to commence proceedings in a court […] to enforce this Act”.[28]
[26] FW Act, s 3(b).
[27] FW Act, s 134(1).
[28] FW Act, s 682(1)(d).
The FWO submits that compliance notices issued under s 716 of the FW Act are an important statutory mechanism for enforcing compliance with minimum entitlements but also acknowledges that they are an alternative to commencing litigation for each underlying contravention of an entitlement. Despite this, they ask the Court to recognise that compliance notices are themselves enforceable through litigation when they are not complied with.[29]
[29] FW Act, s 539(2), item 33.
The FWO submits that Parliament gave the Court broad power under s 545, encompassing “preventative, remedial or compensatory” orders. It asks the Court to take into account the observations of Mortimer J (as her Honour then was) in Dafallah at [148] that the language of s 545 allows:
“remedies which meet the circumstances of any given contravention, taking into account the range of parties who may have brought proceedings in relation to the contravention, and the actions which might in any given circumstance be required to remedy the contravention, to ensure it does not occur again”.
The FWO also submits that Parliament has not constrained the discretion of the Court to make an order awarding compensation for loss that a person has suffered because of a contravention of s 716(5) and that this is further reinforced: “by the fact that a failure to obey with a compliance notice is a discrete contravention of the FW Act that does not depend on proof that there has been a contravention of an instrument particularised in s 716(1)” (referring to Pure Telecom at [58]). The FWO notes (as was observed in Pure Telecom at [60]) that there are protections available to test the reasonable belief, both under s 717 of the FW Act, as well as the ability to test the reasonable belief where a contravention of s 716(5) has been pursued.
The FWO submits that these features of the compliance notice regime stand in contrast to other provisions in the FW Act where it is said that Parliament has imposed limits upon the orders which can be made. For example, orders for the payment of costs can only be made in the circumstances prescribed by s 570 of the FW Act. Further, until recently, s 44(2) of the FW Act prohibited a court from ordering relief under Part 4-1 in relation to contraventions of ss 65(5) and 76(4) (provisions relating to flexible working arrangements and extended parental leave).
Fourth, the FWO submits that the doubts expressed in paragraphs [46]-[49] of Carers Portland, as to the absence of a monetary amount in the compliance notice itself, and the fact a respondent might conclude that no amount is owing, do not provide grounds to decline to exercise the discretion to make an order awarding compensation.
The FWO submits that in circumstances where the employer has a statutory duty to make and keep the records required to undertake such calculations as might be required by a compliance notice and has available to it a review process by which to challenge the underlying contraventions, the FWO may, as part of a proceeding to litigate the failure to comply with the notice and where no review has been sought, adduce evidence of the loss suffered by a person as a result of the contravention of s 716(5). The FWO submits that where the respondent to a proceeding commenced by the FWO has an opportunity to challenge the FWO’s evidence to loss and where such evidence is accepted, there is nothing to prevent the court exercising its discretion under s 545 of the FW Act to make an order awarding compensation, notwithstanding that no monetary amount was specified in the compliance notice.
The FWO submits that the foregoing principles and analysis can be applied to the present matter where, because of the respondents’ default, findings of contraventions of s 716(5) of the FW Act were made. The FWO submits that the Court is constrained in the making of orders in relation to these contraventions, only to the extent that they are to be considered appropriate.
The FWO submits that a secondary obligation on LROC and Mr Oliver to pay amounts to the Employees was created by the issuing of each Compliance Notice and that in the context of the compliance notice regime, it does not matter that contraventions of the obligations within s 716(1) have not been proven. This is because the reasonable beliefs formed by FWIs Semmler and Chin and admitted on the pleadings (through the default judgment process) have not been challenged and are sufficient (referring to Pure Telecom at [59]).
The FWO submits that had the respondents complied with the Compliance Notices, Mr Oliver would have paid the amount his calculations showed were payable to Mr Dooney, and LROC would have paid the amounts shown in the FWO’s calculations. Because the respondents have not made those payments and have failed to comply with the Compliance Notices, the Employees continue to suffer the loss of their entitlements under the 2010 Award, 2020 Award and the FW Act and it is therefore appropriate that the FWO seek orders for the respondents to pay compensation commensurate with these outstanding entitlements.
The FWO submits that because the Court entered default judgment against the respondents, the FWO is entitled to rely on the relief sought and deemed to be admitted in its statement of claim.
CONSIDERATION OF RELIEF
Declarations
As a preliminary matter, I note that in its supplementary submissions (and addressed briefly in oral submissions) the FWO invited the Court to amend under the “slip rule” the declarations of contravention made on 12 September 2024 to make clear that there had been no adjudication on the merits of the FWO’s claims in the statement of claim. I consider this to be an amendment that can and should be made under the Court’s procedural rules dealing with amendment. An amendment to this effect was made on 11 December 2024 pursuant to rule 17.05 of the Court’s rules then in place as it properly reflects the intention of the Court which is to recognise the character of admissions obtained through application of the default provisions, and is consistent with other orders made in this jurisdiction. Importantly, it is an amendment that operates favourably to the respondents so that there can be no question of prejudice to them from not being afforded the opportunity to respond to the proposed amendment.
Other relief
Discussion of the declaratory relief already granted in this case leads conveniently to a discussion as to the other relief now sought by the FWO.
The FWO submits that on a further application of the default provisions contained in this Court’s procedural rules, the Court may give judgment against the respondents for the relief that the applicant appears entitled to on the statement of claim and on the basis that the Court is satisfied it has the power to grant.
Since this submission was made and the matter heard, the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2025 (Cth) have come into effect. Insofar as they deal with the powers of the Court in circumstances of default of a respondent, they now relevantly provide:
5.11 Orders on default – respondent
If a respondent is in default, the Court may:
…
(c)if the proceeding was started by an originating application supported by a statement of claim, or an alternative accompanying document referred to in rule 8.04, or if the Court has ordered that the proceeding continue on pleadings – give judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or
…
This new rule mirrors the equivalent provision in the Federal Court Rules 2011 (Cth), namely, r 5.23(2)(c)), about which there has been extensive judicial commentary.
As an example, in Kidd v Kwek (No 2) [2024] FCA 194, McEvoy J made the following observations about the provision (by reference to earlier decisions concerning its construction and operation) at [21]-[23]:
21The Court retains a discretion as to whether or not to make any order or an order of a particular kind in relation to an application pursuant to r 5.23, and whether that discretion should be exercised depends, inter alia, upon “the nature of the default itself, any explanation provided for the default, the manner in which the party in default has conducted the proceeding to-date and whether the Court could have any confidence that a proceeding would henceforth be conducted in an orderly and proper manner”: BJ International Limited v Asghar (No 2) [2013] FCA 580 at [13] (Flick J). An order may be made entering default judgment against a respondent in circumstances where the default is such as to manifest an intention on the part of the respondent not to comply with orders which have been made with a view to preparing a case for hearing; a single act of default may be sufficient; and in other circumstances a single act of default may not warrant an order being made: BJ International at [14].
22Whatever a defaulting party’s state of mind or resources, where the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the other parties, it may be appropriate for the Court to make orders for default judgment: Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 396 (Wilcox and Gummow JJ).
23In Maylord Equity Management Pty Ltd v Parazelsus Ltd [2014] FCA 979, Gleeson J recorded the following relevant principles at [10]-[14]:
[10]The condition in rule 5.23(c) of the Rules, that the Court be satisfied that the applicant is entitled to relief before judgment is entered against the respondent, does not require proof by way of evidence of the applicant’s claim, although evidence may be adduced: Australian Competition and Consumer Commission v Dataline Net AU Pty Ltd (2006) 236 ALR 665, [2006] FCA 1427 at [44]; Yeo v Damos Earthmoving Pty Ltd, Re Beachwood Developments Pty Ltd (in liq) [2011] FCA 1129 at [9].
[11]However, the applicant must demonstrate, on the face of the statement of claim:
a.a claim for relief sought; and
b.that the court has jurisdiction to grant that relief.
See Luna Park Sydney Pty Ltd v Bose [2006] FCA 94 at [20].
[12]An applicant will appear to be entitled to the relief sought in the statement of claim if each element of the relevant civil wrong is properly and discretely pleaded: Macquarie Bank Ltd v Seagle [2005] FCA 1239; (2005) 146 FCR 400 at [24]; Macquarie Bank Ltd v Seagle (2008) 79 IPR 7, [2008] FCA 1417 at [20].
[13]The Court may permit recourse to further limited evidence but cannot admit evidence that would alter the case as pleaded: Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 at [25] (“Speedo”).
[14]If an order for relief under rule 5.23(2)(c) is made, it gives the applicant a special privilege to gain judgment without proof of the applicant’s claim – a severe disadvantage to the respondent. As a result, the rules governing default judgment are strictly construed and the discretion must be exercised cautiously: Clayton v Thomas C Denton & Co Pty Ltd [1972] VicRp 5; [1972] VR 46 at 49; Speedo at [20].
Implicit in my earlier decision to make orders requiring the respondents to pay pecuniary penalties was an acknowledgement that the Court has the power to make such orders. This reflects the position that under s 546(1) of the FW Act, this Court (among others) may make such orders where satisfied that the person has contravened a civil remedy provision. A contravention of s 716(5) has this status and the deemed admissions of the respondents (the basis upon which declarations were made) establish their liability.
As far as the FWO seeks what it describes as “rectification orders”, it appeals to s 545(1) of the FW Act instead and seeks the following orders as set out in in its prayer for relief in the statement of claim:
(a)pursuant to s 545(1) of the FW Act, Mr Oliver take the following steps to remedy the direct effects of his non-compliance with the First Compliance Notice within 28 days from the date of this order:
(i)pay $855.38 to Mr Dooney; and
(ii)provide to the FWO proof that the amount set out in [the foregoing subparagraph] has been rectified;
(b)pursuant to s 545(1) of the FW Act, LROC Builders take the following steps to remedy the direct effects of its non-compliance with the Second Compliance Notice within 28 days from the date of this order:
(c)pursuant to s 545(1) of the FW Act, LROC Builders take the following steps to remedy the direct effects of its non-compliance with the Third Compliance Notice within 28 days from the date of this order:
(i)pay $25,218.73 to Mr Van Der Meer;
(ii)pay $2,350.94 to Mr Van Der Meer’s nominated superannuation fund;
(iii)pay $16,805.88 to Mr Guanizo;
(iv)pay $2,002.75 to Mr Guanizo’s nominated superannuation fund;
(v)provide to the FWO proof that the amounts set out in the [foregoing subparagraphs] have been rectified.
Section 545 of the FW Act presently provides as follows (Notes omitted):
545 Orders that can be made by particular courts
Federal Court and Federal Circuit and Family Court of Australia (Division 2)
(1) The Federal Court or the Federal Circuit Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person;
(d) an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.
…
I note that s 545(2)(d) of the FW Act was inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) and took effect on 27 February 2024. It came into effect after the commencement of this proceeding and after the statement of claim was filed but was not in effect at the time of the issue of any of the Compliance Notices, or at the time the Compliance Notices specified for compliance.
The Explanatory Memorandum that accompanied the Bill that introduced s 545(2)(d) said only about the provision that:[30]
840.Subsection 545(1) of the FW Act affords a broad discretion to a relevant court to grant an ‘appropriate’ remedy which meets the circumstances of the contravention of a civil remedy provision under the FW Act. Without limiting subsection (1), subsection 545(2) provides that a relevant court can make orders of the specified kind.
841.This item would amend the provision to add a new example to the list in subsection 545(2): an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by a Fair Work Inspector or the FWO. This reference to a notice includes:
•a notice to produce issued by a Fair Work Inspector (see the FW Act, section 712);
•a compliance notice issued by a Fair Work Inspector (see the FW Act, section 716); and
•a FWO notice given to a person by the FWO (or their delegate) (see the FW Act, section 712AD).
[30] Explanatory Memorandum, Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth).
The FWO’s comprehensive submissions contain an acknowledgement that there have been divergent approaches in this Court as to whether orders for compensation can be made (typically reflecting alleged underpayments) where there has been a failure to comply with a compliance notice. As noted in these submissions I have earlier expressed the view (in Fair Work Ombudsman v Express Cars Direct Australia Wide Pty Ltd (No 2) [2024] FedCFamC2G 1179) that they cannot. Now again, and despite the careful submissions of counsel for the FWO, Mr McDermott, and further consideration of the issue, I remain of this view. This is not a question of discretion but of power and in short, involves a rejection of the argument that there is a connection between the loss the person (here, each of the Employees) has suffered, and the contravention.
The FWO’s submissions on causal connection are set out at [67] above. They contain a series of propositions, most of which accurately reflect the operation of the compliance notice regime created by the FW Act and are not controversial.
The argument that I continue to resist however is that the giving of the Compliance Notices to LROC and Mr Oliver created a secondary obligation to pay amounts to the Employees which could later be enforced through a compensatory order.
Instead, I consider that the only obligation imposed on the respondents by the Compliance Notices was that they take the steps identified in the relevant notice which included to identify the number of hours worked during the relevant period by the affected employee, identify the amount paid to the employee during this period and in the event of a negative difference between the amount in fact paid and the amount to which the employee was entitled, make a payment of the amount outstanding to the individual.
Self-evidently, the taking of each these steps might or might not result in the identification of a monetary amount owed to the employee that the employer would be required to pay to fully comply with the compliance notice. However, in terms of characterisation, the loss to the affected employee by the failure of the respondents to comply with the Compliance Notices was the lost opportunity to have their entitlements reviewed and if necessary, redressed, through the FWO’s enforcement processes. The monetary loss occasioned by the alleged failure by the respondents to comply with workplace laws and/or industrial instruments had already crystallised as at the date upon which the obligation arose and occurred “because of” this failure.
Section 545(2)(d) of the FW Act is legislative recognition that in circumstances where a monetary loss has not been established to the standard of proof ordinarily required in the civil jurisdiction (the “reasonable belief”), the appropriate remedy is an order requiring the recalcitrant employer to take the steps that remained unperformed under the compliance notice. In some cases, this would require the employer to take each of the steps identified. In other cases, where calculations had been performed and an underpayment identified, the Court would be empowered to make an order that the identified payment be made to the affected employee. However, its character strictly would not be compensatory but rather one more akin to specific performance.
An order of this kind would not subvert the operation of the compliance notice regime as it would be one directed principally at enforcement of the notice itself. An order of this kind would recognise that the relevant loss to the affected employee was the lost opportunity to have their entitlements reviewed and if necessary redressed, by their employer which opportunity (co-existent with the obligation) lapsed as at the expiry of the date of compliance. An order made under s 545(2)(d) would have the effect of reviving that obligation and making it the subject of a court order.
While this analysis might be seen by some as an exercise in semantics, it can be defended by reference to arguments of the kind that have been rehearsed in decisions including Carers Portland and Cobra Security and which emphasise the different character of compliance notice proceedings, compared with, for example, proceedings that allege and are required to prove, breaches of ss 44 or 45 of the FW Act.
On this analysis, the FWO is not without redress. She can seek penalties which, as this case demonstrates, can be substantial. The FWO can also seek orders which may result, through performance of the steps identified in the compliance notice, in affected employees being paid any unpaid entitlements. The right of the FWO to take direct action to recover outstanding entitlements is also preserved.
I decline in these circumstances to make the compensatory orders sought by the FWO because I am not satisfied that the Court has the power to make them.
During the hearing of the FWO’s application I noted that there was precedent for this Court making an order under s 546(3) of the FW Act for the payment of any pecuniary penalty to be directed to an employee the subject of a compliance notice (see the cases referred to at [67(2)] above). I invited the FWO to provide to chambers following the hearing (should she wish to do so) a proposed alternative minute of order that adopted this approach, instead of seeking orders under s 545(2)(b) of the FW Act.
Following the hearing I received a minute of order which I acknowledge is to be construed strictly as an alternative to the FWO’s primary position that compensation is available and appropriate. These orders provide that the FWO redistribute in proportions that reflect their alleged outstanding entitlements, amounts from any penalty that LROC is required to pay to the affected employees. A similar approach is taken to the penalty to be paid by Mr Oliver, although in his case, the calculation is more straightforward as it involves a single employee, Mr Dooney.
I am satisfied that I have the power under s 546(3)(c) of the FW Act to make an order that would involve payment of a pecuniary penalty, or part of the penalty, to a particular person and that in the circumstances of this case it is appropriate that I exercise my discretion to do so. Orders will be made accordingly with the quantum to be paid to the Employees fixed by reference to the maximum amounts identified in the FWO’s minute of order.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 15 September 2025
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