Fair Work Ombudsman v Niyamat Pty Ltd - [2023] FedCFamC2G 1080

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Niyamat Pty Ltd [2023] FedCFamC2G 1080

File number: MLG 955 of 2023

Judgment of: JUDGE TAGLIERI

Date of judgment: 24 November 2023

Catchwords: INDUSTRIAL LAW – penalty hearing – contraventions of Fair Work Act 2009 (Cth) – determination of quantum of penalties to be paid to Commonwealth – penalty orders made

Legislation:
Corporations Act 2011 (Cth) s 471B

Fair Work Act 2009 (Cth) ss 550, 716(1), 716(2), 716(5)

Restaurant Industry Award 2020

Cases cited:
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3

Fair Work Ombudsman v NSH North Pty Ltd [2017] FCA 1301

Kelly v Fitzpatrick [2007] FCA 1080

Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426

Division: Division 2 General Federal Law

Number of paragraphs: 28

Date of hearing: 31 October 2023

Place: Hobart

Solicitor for the Applicant: Ms Vassallo, Fair Work Ombudsman

For the Respondents: The Second Respondent in person
ORDERS

MLG 955 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
NIYAMAT PTY LTD (ACN 621 370 081)

First Respondent

MATHEW D'ROZARIO

Second Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

24 NOVEMBER 2023

THE COURT ORDERS THAT:
1.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) (“the Act”), the Second Respondent pay pecuniary penalties of $2,830.50 in respect of the contraventions set out in the Orders of 25 September 2023.
2.Pursuant to section 546(3) of the Act, the penalty amounts referred to in Order 1 above be paid to the Consolidated Revenue Fund of the Commonwealth within 90 days of the date of these Orders.

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).
REASONS FOR JUDGMENT
Judge Taglieri

These proceedings relate to contraventions of s 716(5) of the Fair Work Act 2009 (Cth) (“the Act”) on the part of the Respondents for non-compliance with a compliance notice issued by the Applicant and given on 21 March 2022 (“the Compliance Notice”).
Liability was admitted by the Respondents in an agreed Statement of Agreed Facts filed 22 September 2023. Consequently, by consent, the Court made orders on 25 September 2023 in the following terms:
THE COURT DECLARES BY CONSENT THAT:
1.The First Respondent contravened s.716(5) of the Fair Work Act 2009 (Cth) (“the Act”) by failing to comply with the compliance notice issued on 21 March 2022 pursuant to s.716(2) of the Act (“the compliance notice”).
2.The Second Respondent was involved, within the meaning of s.550(2) of the Act, in the First Respondent’s contravention…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC2G 1080
Decision Date: 24 November 2023

CaseChat Overview and Summary

In the matter of Fair Work Ombudsman v Niyamat Pty Ltd, the Applicant, Fair Work Ombudsman, brought proceedings against the two Respondents, Niyamat Pty Ltd and its director, seeking penalties for contraventions of the Fair Work Act 2009 (Cth) and associated awards. The case was heard in the Federal Circuit and Family Court of Australia, where the primary issue was to determine the quantum of penalties to be imposed on the Second Respondent, Niyamat Pty Ltd, for the non-payment of wages and superannuation to an employee, Dumeshika Marasinghe, who was on a student visa at the time of employment.

The legal issues before the court involved interpreting the relevant provisions of the Fair Work Act 2009 and the Restaurant Industry Award 2020, as well as determining the appropriate penalty for the contraventions. The court had to consider whether the contraventions were serious enough to warrant civil penalty orders and, if so, what the appropriate quantum of penalties should be. The court also had to take into account the Respondents' attempts to rectify the non-compliance after proceedings had commenced.

The court found that the Respondents had failed to comply with the Compliance Notice issued by the Fair Work Inspector within the specified timeframe, despite having the means to do so. The Respondents only partially rectified the non-compliance after proceedings had commenced and did not provide evidence of the payment of outstanding superannuation contributions. The court determined that the contraventions were serious and warranted the imposition of civil penalty orders. The court took into account the Respondents' attempts to rectify the non-compliance and the fact that the contraventions were not deliberate but resulted from a lack of understanding or attention to the legal requirements. The court imposed a penalty of $7,250.30 plus superannuation for the first contravention and $3,584.45 for the second contravention, for a total penalty of $10,834.75.

The court made orders that Niyamat Pty Ltd pay the penalty to the Commonwealth within 28 days and that there be no order as to costs. The proceedings against the First Respondent were discontinued as per the terms of s 471B of the Corporations Act 2011.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant’s submission now is that it only seeks that the proceedings continue against the Second Respondent, noting the terms of s 471B of the Corporations Act 2011 (Cth). Accordingly, no order will be made in respect of the First Respondent and the reasons that follow are confined to the Court’s reasoning for the penalty to be imposed against the Second Respondent.FINDINGS BASED ON AGREED FACTS I find the following on the basis of agreed facts and unchallenged evidence:(a)The Respondents had operated a restaurant and café in the state of Victoria;[2] (b)In December 2022, FWI Logan commenced an investigation into the First Respondent’s compliance with the Act in respect of the Dumeshika Marasinghe (“the Employee”).[3] The Employee was on a student visa during her employment with the First Respondent;[4](c)During his investigation, FWI Logan corresponded with the Respondents,[5] and on the basis of information obtained in the course of that investigation, formed a reasonable belief within the meaning of s 716(1) of the Act that the First Respondent had contravened provisions of the Restaurant Industry Award 2020 in respect of the Employee;[6](d)On 21 March 2022, FWI Logan provided the First Respondent with the Compliance Notice pursuant to s 716(2) of the Act, by post to the First Respondent’s registered office and by email;[7](e)The Compliance Notice required the First Respondent to calculate and pay the amount owing to the Employee with respect to the identified contraventions by 29 April 2022, and provide evidence of compliance to the Applicant by 6 May 2022;[8](f)Had the First Respondent complied with the Compliance Notice, it would have paid $7,250.30 plus superannuation, to the Employee;[9](g)The First Respondent failed to comply with the Compliance Notice within the timeframe for compliance;[10](h)On or around 13 May 2022, the First Respondent partially rectified its non-compliance with the Compliance Notice by paying the amount of $3,665.85 to the Employee;[11](i)After the commencement of these proceedings, the First Respondent took further steps to rectify its non-compliance with the Compliance Notice by payment of $3,584.45 to the Employee and providing the Applicant with reasonable evidence of the payment;[12] and(j)As at the date of the hearing, there was some apparent dispute about whether the outstanding superannuation contributions had been paid to the Employee’s superannuation fund as required by the Compliance Notice.[2] SOAF at [6(d)].[3] FWI Affidavit at [5].[4] FWI Affidavit at Annexure JTL-02.[5] FWI Affidavit at [6].[6] FWI Affidavit at [7].[7] FWI Affidavit at [8].[8] SOAF ay [15].[9] SOAF ay [25].[10] SOAF ay [17].[11] SOAF ay [20].[12] FWI Affidavit at [24] and [25]. As the Respondents at no time have provided evidence that the superannuation contributions have been paid, despite being ordered to file and serve evidence it sought to rely on for the penalty issues, I infer that the superannuation has not been paid despite the confusing submissions made about this topic by the Second Respondent at the hearing.APPLICABLE LEGAL PRINCIPLES

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	MLG 955 of 2023
Judgment of:	JUDGE TAGLIERI
Date of judgment:	24 November 2023
Catchwords:	INDUSTRIAL LAW – penalty hearing – contraventions of Fair Work Act 2009 (Cth) – determination of quantum of penalties to be paid to Commonwealth – penalty orders made
Legislation:	Corporations Act 2011 (Cth) s 471B Fair Work Act 2009 (Cth) ss 550, 716(1), 716(2), 716(5) Restaurant Industry Award 2020
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 Fair Work Ombudsman v NSH North Pty Ltd [2017] FCA 1301 Kelly v Fitzpatrick [2007] FCA 1080 Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426
Division:	Division 2 General Federal Law
Number of paragraphs:	28
Date of hearing:	31 October 2023
Place:	Hobart
Solicitor for the Applicant:	Ms Vassallo, Fair Work Ombudsman
For the Respondents:	The Second Respondent in person

MLG 955 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	NIYAMAT PTY LTD (ACN 621 370 081) First Respondent MATHEW D'ROZARIO Second Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	24 NOVEMBER 2023