Fair Work Ombudsman v Monaco Willows Pty Ltd (No 3)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Monaco Willows Pty Ltd (No 3) [2025] FedCFamC2G 564

File number(s): MLG 3155 of 2024
Judgment of: JUDGE O'SULLIVAN
Date of judgment: 16 April 2025
Catchwords: INDUSTRIAL LAW – application for civil penalty –contraventions of Fair Work Act 2009 (Cth) – failure to abide by compliance notice and breach of s.323 – penalty hearing – appropriate penalty
Legislation:

Corporations Act 2001 (Cth)

Fair Work Act 2009 (Cth) ss 323, 546, 550, 557, 716

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) r.13.06
Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (‘CFMEU’) (2018) 262 CLR 157

Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482

Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR

Fair Work Ombudsman v Austrend International Pty Ltd (No.2) [2020] FCA 1193

Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557

Fair Work Ombudsman v Hess [2021] FCCA 1883

Fair Work Ombudsman v Matcraft Pty Ltd [2021] FCCA 272

Fair Work Ombudsman v Monaco Willows Pty Ltd (No 2) [2025] FedCFamC2G 176

Fair Work Ombudsman v Monaco Willows Pty Ltd [2024] FedCFamC2G 1218

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] 275 IR 148

Fair Work Ombudsman v Soma Kitchen Pty Ltd (No.2) [2020] FCCA 2583

Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492

Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290

Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Division: Division 2 General Federal Law
Number of paragraphs: 50
Date of last submission/s: 16 April 2025
Date of hearing: 16 April 2025
Place: Melbourne
Solicitor for the Applicant: Ms A Cooper
Solicitor for the First Respondent: No appearance
Solicitor for the Second Respondent: In person

ORDERS

MLG 3155 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FAIR WORK OMBUDSMAN

Applicant
AND:

MONACO WILLOWS PTY LTD (ACN 006 816 333)

First Respondent

FRANCIS PLACENTINO

Second Respondent

ORDER MADE BY:

JUDGE O'SULLIVAN

DATE OF ORDER:

16 APRIL 2025

THE COURT ORDERS THAT:

1.Pursuant to section 546(1) of the FW Act the second respondent pay within 3 months a total pecuniary penalty of $ 7,995 for the contraventions set out in paragraph 4 of the orders dated 14 February 2025;

2.The Applicant have liberty to apply on seven days’ notice in the event that the preceding order is not complied with.

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 17.05(2)(g) Federal Circuit and Family…

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Details
Case
[2025] FedCFamC2G 564
Decision Date

CaseChat Overview and Summary

The matter before the Court involves proceedings brought by the Fair Work Ombudsman against Monaco Willows Pty Ltd and Francis Placentino. The proceedings relate to contraventions of the Fair Work Act 2009, specifically failure to comply with a compliance notice and underpaying an employee. The Court was tasked with determining the appropriate civil penalty to impose on Francis Placentino, the sole director of Monaco Willows Pty Ltd, for his involvement in these contraventions.

The key legal issues before the Court were the assessment of the appropriate penalties for the contraventions of sections 323 and 716 of the FW Act, as well as determining whether the penalties should be imposed concurrently or consecutively. The Court considered the severity of the contraventions, the culpability of the contravener, and the need for deterrence and punishment. Given the absence of mitigating factors and the historical failure of Placentino to participate in the proceedings, the Court found that penalties at the lower end of the proposed ranges were appropriate.

The Court carefully considered the relevant factors, including the maximum penalties available for the contraventions, and decided that a penalty of $4,695 for the compliance notice contravention and $3,300 for the deduction contraventions was suitable. The Court rejected Placentino's request for 12 months to pay the penalty, instead granting a three-month period. The Court based its decision on the principles of proportionality and the need for a penalty that reflects the offending conduct while also serving as a deterrent.

The final orders of the Court included the imposition of civil penalties on Francis Placentino for the contraventions of the Fair Work Act, with specific amounts and payment terms as outlined in the decision. The Court also noted that the proceedings against Monaco Willows Pty Ltd were stayed due to its external administration.

Orders

Orders of the court

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Background

Background to the litigation

Before the Court are proceedings for the imposition of penalties for contraventions of the Fair Work Act 2009 (Cth) (“FW Act”). BACKGROUND On 16 September 2024 the Fair Work Ombudsman (‘the applicant’) commenced proceedings against Monaco Willows Pty Ltd (ACN 006 816 333) (‘the first respondent’) and Francis Placentino (‘the second respondent’). The proceedings were initiated against the background of the applicant’s investigation (and then delivery of a compliance notice to the respondents) arising from concerns a former employee at the first respondent’s café/bar trading as Tusk in the Melbourne suburb of Windsor had been underpaid. In its statement of claim the applicant sought declarations the first respondent had contravened s 323 & s 716 of the FW Act and that the second respondent (the sole director) was involved in those contraventions within the meaning of s 550(2) of the FW Act. The procedural background is otherwise set out in Fair Work Ombudsman v Monaco Willows Pty Ltd [2024] FedCFamC2G 1218 and Fair Work Ombudsman v Monaco Willows Pty Ltd (No 2) [2025] FedCFamC2G 176 (Monaco No.2) which should be read with these reasons. Following the making of declarations of contravention of the FW Act by both respondents at a default judgment hearing on 14 February 2025 for the reasons set out in Monaco No. 2 the matter was listed today for a penalty hearing. Since then, the first respondent has been placed under external administration. The applicant has abjured the option of seeking leave to continue these proceedings as against the first respondent. As a result, these proceedings are stayed as against the first respondent by operation of the relevant provisions of the Corporations Act 2001 (Cth). The applicant does however press for the imposition of civil penalty on the second respondent for his involvement in the contraventions declared for the reasons set out in Monaco No.2. The second respondent, who had multiple opportunities to properly participate in these proceedings (see Monaco No.2), had (save for providing written submissions for “mitigation on the breaches” on 14 March 2025) historically failed to do so. On 15 April 2025 the second respondent emailed the Court asking to be allowed to attend the penalty hearing through a video link as he had “come done with a fever”. He was advised he would need to provide a medical certificate explaining why he couldn’t attend in person (see MZZGY v Minister for Immigration and Border Protection [2014] FCA 448 at [13]). The second respondent then told the Court that whilst he believed that was “harsh and irresponsible” nonetheless and “contrary to [his] better judgment” he would do so. As it transpired, when the penalty hearing was called on this morning the applicant was represented by Ms Cooper and the second respondent appeared in person. Having not filed any material in the matter (other than the written submissions which he told the Court was because, like his lack of participation, he couldn’t afford legal representation) the second respondent did not seek to rely on any additional documents.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the absence of affidavit material from the second respondent there is no evidence that suggests that penalties within the proposed range/s would be crushing or oppressive.CONCLUSION I have taken into account the material before the Court in the context of the above-mentioned relevant considerations and am satisfied in each case a penalty at the lower end of the range is appropriate. In all the circumstances a penalty on the second respondent of $4,695 for the Compliance Notice Contravention and $3,300 for the Deduction Contraventions reflects an appropriate response to the offending conduct. Whilst the second respondent at today’s penalty hearing asked for 12 months to pay, absent a proper evidential foundation to do so I would only allow 3 months as this wasn’t opposed. Accordingly, there will be orders as set out at the beginning of these reasons for decision.

Ratio Decidendi

Legal Principle Established

The Court may take into consideration matters relevant to both the character of the contravening conduct and of the contravener.[6] The Court's task is, and remains to be, the determination of what penalty is most appropriate given all the relevant circumstances of the case.[7][6] Pattinson at [19].[7] Pattinson at [68].CONSIDERATION It is now convenient to turn to an analysis of the relevant considerations. Before doing so I am satisfied the applicant’s submissions accurately set out the following background to the contraventions:9.On 13 September 2023, FWI Tran gave the Compliance Notice to the First Respondent after forming a reasonable belief that it had contravened provisions of the Restaurant Award 2020 relating to minimum weekly rates, public holiday penalty rates and overtime rates, as well as section 90(2) of the FW Act relating to accrued untaken annual leave on termination, in respect of Mr Sidhu.10.The Compliance Notice required the First Respondent to calculate and pay the amounts owing to Mr Sidhu by 13 October 2023, with reasonable evidence of compliance to be produced to the Applicant by 20 October 2023.11.The First Respondent failed to comply with the Compliance Notice by the specified dates and thereby contravened s 716(5) of the FW Act (Compliance Notice Contravention).12.The First Respondent also contravened s 323(1)(a) of the FW Act by failing to pay Mr Sidhu in full for the performance of work, between 18 October 2021 and 26 March 2023(Deduction Period). The First Respondent underpaid Mr Sidhu $3,610 during the Deduction Period (Deduction Contraventions).13.The Second Respondent is the sole director and secretary of the First Respondent and was responsible for its overall operation and control. The Second Respondent was involved, within the meaning of s 550(2) of the FW Act, in the Compliance Notice Contravention and the Deduction Contraventions. (footnotes from original omitted) In this case, in relation to the Deduction Contraventions, the maximum penalty for a contravention of s 323 by an individual is 60 penalty units. Accepting the applicant’s submission and adopting the approach in the authorities the maximum penalty the Court may impose for a single contravention of s 323 of the FW Act is $16,500 for an individual, where the contravention occurred on or between 1 January 2023 and 30 June 2023 and the contravention was not serious.[8] [8] see Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [396] to [399]. In relation to the Compliance Notice Contraventions, the maximum penalty for a contravention of s 716(5) was 30 penalty units. Again accepting the correctness of the applicant’s submissions the maximum penalty the Court may impose on the second respondent for his accessorial liability in the Compliance Notice Contravention is $9,390. The Compliance Notice Contravention and the Deduction Contraventions are separate and distinct and the Court will consider the appropriate penalties to be imposed for each and whether the overall penalty arrived at is an appropriate response to the contravening conduct.Course of conduct