Fair Work Ombudsman v Mobile Food Vans and Trucks Pty Ltd (No 2)

The Federal Circuit Court of Australia, presided over by Judge O'Sullivan, considered an application for civil penalties. The applicant, the Fair Work Ombudsman, sought penalties against Mobile Food Vans and Trucks Pty Ltd (the first respondent) and Yener Gelgel (the second respondent) for contraventions of the *Fair Work Act 2009* (Cth). Specifically, the proceedings concerned the first respondent's failure to comply with a compliance notice issued by the Fair Work Ombudsman, and the second respondent's involvement in this contravention. The matter proceeded on an undefended basis due to the respondents' failure to file required documents and defend the proceedings.

The central legal issue before the Court was to determine the appropriate pecuniary penalty to be imposed on the second respondent for his involvement in the first respondent's contravention of section 716(5) of the *Fair Work Act 2009* (Cth), which relates to the failure to comply with a compliance notice. The Court was required to consider various factors in assessing this penalty, including the nature and extent of the conduct, the circumstances in which it occurred, any loss or damage sustained, whether there had been prior similar conduct, the size of the business, whether the breaches were deliberate or involved senior management, and the need for specific and general deterrence.

In its reasoning, the Court applied the principles outlined in *Kelly v Fitzpatrick* [2007] FCA 1080, which provide a non-exhaustive list of considerations for determining penalties. The Court noted that the maximum penalty for a breach of section 716(5) was 30 penalty units, which at the time of the breach equated to $6,300. The Court accepted the applicant's submission that the penalty should reflect the unacceptability of the conduct and serve as a deterrent. Considering the factors, including the second respondent's awareness of the compliance notice and the failure to comply, the Court determined that a penalty of $4,410.00, representing 70% of the maximum penalty, was appropriate. This decision underscored the importance of compliance with statutory notices and the serious consequences of failing to do so.

The Court ordered that the second respondent pay a pecuniary penalty of $4,410.00 to the Commonwealth within 28 days. The applicant was also granted leave to proceed on an undefended basis and was directed to serve a copy of the orders on the second respondent.