FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v MT Infinity Pty Ltd [2024] FedCFamC2G 460
File number(s): SYG 1239 of 2023 Judgment of: JUDGE STREET Date of judgment: 20 May 2024 Catchwords: FAIR WORK –section 715 Compliance Notice - café - penalty corporate employer $25,000 – penalty director $5,000 Legislation: Fair Work Act 2009 (Cth) Cases cited: Australian Building and Construction Commission v Pattinson [2022] HCA 13
Australian Ophthalmic Supplies Pty Ltd v McAlary – Smith (2008) 165 FCR 560
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Anor [2015] CLR 482; [2015] HCA 46
Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 428
Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33
Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301
Kelly v Fitzpatrick (2007) 166 IR 14
Masson v Harrington Corporation Pty Ltd t/as Pangea Restaurant & Bar [2007] FMCA 7
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 20 May 2024 Place: Sydney Solicitor for the Applicant: Mr A Fiorenza of the Fair Work Ombudsman Solicitor for the Respondents: Mr J Bui of JB Solicitors ORDERS
SYG 1239 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: MT INFINITY PTY LTD (ACN 618 307 228)
First Respondent
MIAH GOLAM TAREQUE
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
1.The affidavit of Miah Golam Tareque affirmed on 3 May 2024 is to be filed on the Commonwealth Court’s portal before the close of business today.
2.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth), within 90 days:
(a)The first respondent pay to the Fair Work Ombudsman a pecuniary penalty of $25,000.00 for the contravention declared on 8 December 2023; and
(b)The second respondent pay to the Fair Work Ombudsman a pecuniary penalty of $5,000.00 for his involvement within the meaning of section 550(2) of the Fair Work Act 2009 (Cth) in the contravention declared on 8 December 2023.
3.Liberty is granted to the applicant to apply on seven (7) days’ notice if these orders are 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 Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
This was a penalty hearing in relation to…
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- AGLC
- Fair Work Ombudsman v Mt Infinity Pty Ltd [2024] FedCFamC2G 460
- Case
- [2024] FedCFamC2G 460
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the penalties sought were appropriate given the circumstances of the case, including the deliberateness of the respondents' actions post-issuance of the notice and their cooperation or lack thereof. The court also had to consider the extent of the loss or detriment caused to the employees due to the delayed payments. The gravity of the contravention was high, as the respondents were fully aware of their obligations and chose not to comply, leading to significant unpaid entitlements for an extended period.
In reaching its decision, the court found that while the respondents had made some payments to the employees, these were insufficient and came long after the notice period had expired. The court highlighted that the respondents' actions demonstrated a deliberate intention not to comply with the notice. Although there was some cooperation in the form of consent orders for future payments, the court determined that this cooperation was not sufficient to warrant a full discount on the penalties. The court applied a 15% discount for the partial cooperation but emphasised that the respondents had the means to prioritise the payments if they had chosen to do so. The final penalties imposed reflected the seriousness of the contraventions and the need to deter future noncompliance.
The court ordered Mt Infinity Pty Ltd to pay a penalty of $21,250 and the director to pay a penalty of $4,250. The court also noted that the respondents must comply with the existing consent orders for the ongoing payment of entitlements to the employees, including interest and superannuation.
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
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Ratio Decidendi
Legal Principle Established
However, the respondents having been put on notice by the defective notice issued on 6 December 2021, this impacts on the gravity of the circumstances and deliberateness of the conduct that then occurred following the issue of the notice the subject of the contravention on 5 May 2022 and knowing involvement. The communications that took place on 26 May 2022 and 30 May 2002 identify a deliberate intention not to comply by the respondents. The conduct of respondents in that regard is at the most serious end of gravity in terms of deliberate noncompliance of the notice, the time for which compliance expired on 3 June 2022.Co-operation and Corrective Action In relation to cooperation and corrective action, the Court does accept that there have been payments made to each employee totalling $2,800.00 of part of the entitlements the subject of the orders made on 8 December 2023. There are, however, substantial amounts still owing to the employees and relatively are significant amounts for the employees which has been outstanding now for almost three years. The cooperation and corrective action was not full cooperation. Not only was there a failure to comply with the s 715 notice, these proceedings were commenced on 2 August 2023, and it was not until 8 December 2023 that there were consent orders and a consent statement agreed of facts. The conduct of the respondents is also one where, although order 8 was made for the filing of affidavit evidence on 8 December 2023, the respondents did not comply with that order. There was a partial explanation for the further failure to comply with the order made on 26 April 2024 in terms of the provision of evidence. However, as the Court has identified, the evidence that was ultimately put on was not candid and in oral evidence demonstrated a capacity by the respondents had they chosen to do so, to prioritise and attend to payment of these significant amounts for the two employees outstanding over a very substantial period of time. The cooperation does warrant a discount in the order of 15 per cent from the maximum penalty, but this is not a case where it should be the full 20 per cent discount. The Court has taken into account the payments that have been made identified in the affidavit of Ms Cox and that there is a consent order in place for the continuation of payments together with interest and calculations to be performed for payment of superannuation that the respondents must still comply with. The Court appreciates that the second respondent has put his home at Waterloo on the market and that he is seeking to sell the same, and that from the proceeds he will be able to pay out these entitlements at an earlier point of time. It would have also been open to the respondents not to engage in the transactions that gave rise to the draw down on the Waterloo property, the purchase of the Punchbowl property or to sell the plant and equipment and to have prioritised payments of the significant outstanding amounts for the two employees.Nature and Extent of loss