Fair Work Ombudsman v Sails Waterfront Bar & Grill Pty Ltd (No 2)
[2021] FCCA 2002
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Fair Work Ombudsman v Sails Waterfront Bar & Grill Pty Ltd (No 2) [2021] FCCA 2002
File number(s): SYG 1518 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 27 August 2021 Catchwords: INDUSTRIAL LAW – application for order that respondents pay pecuniary penalties for contravention of s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) – pecuniary penalties ordered – whether court has power to order person to whom a notice under s 716(5) of the FW Act has been given to do that which the notice required the person to do – court has such power – orders made. Legislation: Crimes Act 1914 (Cth) s 4AA
Fair Work Act 2009 (Cth) ss 12, 90(2), 539(1), 539(2), 545, 546, 557A, 700, 701, 716, 717
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563
Bevis v VA Holdings Pty Ltd trading as Granton Homes & Ors [2020] FCCA 2082
Fair Work Ombudsman v Sails Waterfront Bar & Grill Pty Ltd [2021] FCCA 1511
Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492
Fair Work Ombudsman v VS Investment Group Pty Ltd [2013] FCCA 208
Hana Express Group Pty Ltd v Fair Work Ombudsman [2020] FCCA 54
Hindu Society Of Victoria (Australia) Inc v Fair Work Ombudsman [2016] FCCA 221
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Re McLernon; Ex parte SWF Hoists and Industrial Equipment Pty Ltd v Prebble [1995] FCA 1408; (1995) 58 FCR 391
Number of paragraphs: 36 Date of last submission/s: 18 August 2021 Date of hearing: 5 August 2021 Place: Sydney Counsel for the Applicant: Mr M Seck, by telephone Solicitor for the Applicant: Office of the Fair Work Ombudsman First and Second Respondents: Second respondent in person, and on behalf of the first respondent, by telephone ORDERS
SYG 1518 of 2020 BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: SAILS WATERFRONT BAR & GRILL PTY LTD (ACN 612 286 030)
First Respondent
ROBERT SUNNA
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.Pursuant to s 545(2) of the Fair Work Act 2009 (Cth) the first respondent take the steps that were required by the Compliance Notice dated 26 February 2020 within 28 days of this order, by:
(a)calculating the number of hours of annual leave accrued by Mr Rahman when his employment ended;
(b)calculating the full amount that Mr Rahman should have been paid for his accrued annual leave and annual leave loading owing under clause 35.2 of the Restaurant Industry Award 2010 and rectify outstanding amounts owing to Mr Rahman, and the superannuation payable in respect of those amounts;
(c)paying the outstanding amounts referred to in order 1(b) above to Mr Rahman;
(d)calculating and paying superannuation into Mr Rahman’s nominated superannuation fund for additional superannuation contributions it was required to pay on the outstanding amounts referred to in order 1(c) above; and
(e)preparing and producing to the applicant, a schedule outlining its calculation of the outstanding amounts it was required to pay Mr Rahman referred to in order 1(b) and (d) above, and providing proof that the outstanding amounts were rectified as set out in orders 1(c) and 1(d).
2.The first respondent pay interest on the amounts owed by Mr Rahman pursuant to order 1(c) above, to the Commonwealth Consolidated Revenue Fund within 28 days of this order, pursuant to s 547(2) of the Fair Work Act 2009 (Cth).
3.Pursuant to s 546 of the Fair Work Act 2009 (Cth) the first respondent pay a pecuniary penalty in the sum of $20,000 for its contravention of s 716(5) of the Fair Work Act 2009 (Cth) identified in declaration 1 of the declarations made on 6 July 2021.
4.The first respondent pay the pecuniary penalty referred to in order 3 to the Commonwealth of Australia within 28 days after the day on which these orders are pronounced.
5.Pursuant to s 546 of the Fair Work Act 2009 (Cth) the second respondent pay a pecuniary penalty in the sum of $3,000 for his involvement in the first respondent’s contravention of s 716(5) of the Fair Work Act 2009 (Cth) referred to in order 3.
6.The second respondent pay the pecuniary penalty referred to in order 5 to the Commonwealth of Australia within 28 days after the day on which these orders are pronounced.
7.The parties have liberty to apply on such notice as the circumstances warrant in relation to any question that may arise concerning the operation or implementation of these orders, such liberty to extend to the first respondent applying for the discharge or variation of order 1 on the ground of impossibility of compliance.
REASONS FOR JUDGMENT
INTRODUCTION
On 6 July 2021 I published reasons for judgment (earlier reasons) on the basis of which I made a declaration that the first respondent (SWB) contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the requirements of a notice dated 26 February 2020 issued pursuant to s 716(2) of the FW Act (Compliance Notice), and set the matter down for hearing on the question of penalties.[1]
[1] Fair Work Ombudsman v Sails Waterfront Bar & Grill Pty Ltd [2021] FCCA 1511
In my earlier reasons I noted that the applicant (FWO) sought an order which, if made, would compel SWB to comply with the requirements of the Compliance Notice, and I expressed doubts the Court has power to make such orders. I invited the parties to make submissions on whether the Court does have such power.
On 5 August 2021 I heard submissions on penalties and on whether the Court has power to make orders to the effect claimed by the FWO. After the hearing, on 18 August 2021, the FWO forwarded to my associate’s inbox an amended form of the orders the FWO seeks. Those orders include the following (Proposed Orders):
1.The First Respondent take the steps that were required by the Compliance Notice dated 26 February 2020 within 28 days of this order, by:
(a) calculating the number of hours of annual leave accrued by Mr Rahman when his employment ended;
(b) calculat[ing] the full amount that Mr Rahman should have been paid for his accrued annual leave and annual leave loading owing under clause 35.2 of the Restaurant Industry Award 2010 (Award) and rectify outstanding amounts owing to Mr Rahman, and the superannuation payable in respect of those amounts;
(c) paying the outstanding amounts referred to in order 1(b) above to Mr Rahman[;]
(d) calculating and paying superannuation into Mr Rahman’s nominated superannuation fund for additional superannuation contributions it was required to pay on the outstanding amounts referred to in order 1(c) above; and
(e) preparing and producing to the Applicant, a schedule outlining its calculation of the outstanding amounts it was required to pay Mr Rahman referred to in order 1(b) and (d) above, and providing proof that the outstanding amounts were rectified as set out in orders 1(c) and 1(d).
2.The First Respondent pay interest on the amounts owed by Mr Rahman pursuant to order 1(c) above, to the Commonwealth Consolidated Revenue Fund within 28 days of this order, pursuant to section 547(2) of the FW Act.
In these reasons for judgment, which assume familiarity with my earlier reasons, I consider whether this Court has power to make orders to the effect of the Proposed Orders. I also determine the question of penalties.
POWER TO MAKE PROPOSED ORDERS?
Statutory provisions
I begin with s 716(5) of the FW Act. It provides that a “person must not fail to comply with a notice given under this section”. That directs attention to the notice that can be given under s 716 of the FW Act. More particularly, it directs attention to four things: the person who may give it; the circumstances in which the person may give it; the things the notice may require a person to do; and other information that must be included in the notice.
The person who may give a notice is identified in s 716(1) of the FW Act. The person must be an “inspector”, a word defined in s 12 of the FW Act to mean “a Fair Work Inspector”. That expression, in turn, is defined in s 12 of the FW Act to mean either a person appointed as a Fair Work Inspector under s 700 of the FW Act, or the FWO in his or her capacity as a Fair Work Inspector under s 701.
The circumstance in which an inspector may give a notice are also identified in s 716(1) of the FW Act; and that is if:
an inspector reasonably believes that a person has contravened one or more of the following:
(a) a provision of the National Employment Standards;
(b) a term of a modern award;
(c) a term of an enterprise agreement;
(d) a term of a workplace determination;
(e) a term of a national minimum wage order;
(f) a term of an equal remuneration order.
Subsection 716(2) of the FW Act provides the notice must specify that the person to whom it is directed do either or both of two things. The first is to “take specified action to remedy the direct effects of the contravention referred to in subsection (1)”, being the contraventions the inspector reasonably believes have occurred. The second is to “produce reasonable evidence of the persons’ compliance with the notice”. Under s 716(3) of the FW Act a notice given under s 716(2) must also:
(a) set out the name of the person to whom the notice is given; and
(b) set out the name of the inspector who gave the notice; and
(c) set out brief details of the contravention; and
(d) explain that a failure to comply with the notice may contravene a civil remedy provision; and
(e) explain that the person may apply to the Federal Court, the Federal Circuit Court or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:
(i) the person has not committed a contravention set out in the notice;
(ii) the notice does not comply with subsection (2) or this subsection; and
(f) set out any other matters prescribed by the regulations.
Subsection 716(4A) of the FW Act prohibits an inspector from applying for an order under Division 2 of Part 4-1 in relation to a contravention of a civil remedy provision by a person if the inspector has “given the person a notice in relation to the contravention”, and either the notice has not been withdrawn and the person has complied with it, or the person to whom the notice has been issued has made an application under s 717 of the FW Act in relation to the notice “that has not been completely dealt with”. Section 717 of the FW Act provides that a person who has been given a notice under s 716 may apply to this Court or to the Federal Court of Australia, or to an “eligible State or Territory Court” for a review of the notice on either or both of two grounds, namely, the person has not committed the contravention set out in the notice, or the notice does not comply with s 716(2) or s 716(3) of the FW Act.
FWO’s submissions
In my earlier reasons I made the following observations:[2]
[2] Fair Work Ombudsman v Sails Waterfront Bar & Grill Pty Ltd [2021] FCCA 1511, at [19]-[21]
I have doubts, however, whether the Court has power under s 545 of the FW Act to make an order that, in effect, compels [SWB] to comply with the requirements of the Compliance Notice. There are two reasons for my doubt. First, there is s 716(4A) of the FW Act, which provides:
An inspector must not apply for an order under Division 2 of Part 4-1 in relation to a contravention of a civil remedy provision by a person if:
(a) the inspector has given the person a notice in relation to the contravention; and
(b) either of the following subparagraphs applies:
(i)the notice has not been withdrawn, and the person has complied with the notice;
(ii) the person has made an application under section 717 in relation to the notice that has not been completely dealt with.
This subsection contemplates that the remedy for a person’s failure to rectify the effect of the contraventions identified in a notice issued under s 716(2) of the FW Act is by commencing and prosecuting an application for remedies in relation to the contraventions identified in the notice, where the contraventions will need to be proved before a court having jurisdiction.
The second reason for my doubting that the Court has power to compel a person to comply with the requirements of a notice issued under s 716(2) of the FW Act is that this would assume that such notice – an administrative act – conclusively determines that the person to whom the notice is issued has committed the contravention identified in the notice. That, however, could be taken as impermissibly purporting to confer the judicial power of the Commonwealth on the inspector who has issued the notice.[3]
[3] See, for example, Re McLernon; Ex parte SWF Hoists and Industrial Equipment Pty Ltd v Prebble [1995] FCA 1408; (1995) 58 FCR 391
In relation to the first of the two doubts I expressed in my earlier reasons, counsel for the FWO submitted as follows:
(a)The statutory elements for exercising the power to make orders under s 545(1) of the FW Act are satisfied. SWB failed to comply with the requirements of the Compliance Notice, and such failure is a civil remedy provision.
(b)Contrary to what I suggested in paragraph 20 of my earlier reasons, s 716(4A) of the FW Act does not envisage that the remedy for a person’s failure to rectify the effect of a contravention identified in a notice given under s 716 of the FW Act is by applying for remedies in relation to the contraventions identified in the notice. Subsection 716(4A) of the FW Act merely envisages that orders in relation to the contraventions identified in the notice cannot be sought when the notice has not been withdrawn and the person to whom it has been given has complied with it, or where the person has a applied for a review under s 717 of the FW Act.
(c)Making orders to the effect of the Proposed Orders would be consistent with the objects of the statutory scheme in Subdivision DD of Division 3 to Part 5-2 of the FW Act. The object of the scheme is to create an administrative mechanism that is less formal than contested litigation. The effect of the scheme “is merely to shift the evidentiary burden onto the recipient of the notice to establish that there has either been a technical failure by the inspector to comply with sections 716(2) or 716(3) of the FW Act, or alternatively, that they have not contravened the National Employment Standards or an industrial instrument as the notice alleges”.[4]
(d)The purpose of the statutory scheme in Subdivision DD of Division 3 to Part 5-2 of the FW Act “would be undermined if compliance with a notice is not ordered by this Court following a declaration of non-compliance”.[5]
(e)The Court’s discretion to make remedial orders under s 545 of the FW Act in relation to contraventions of civil remedy provisions is wide.
(f)Judges of this Court have made orders to the effect of requiring compliance with notices issued under s 716 of the FW Act; and no doubts have been expressed in those decisions about the power of this Court to make such orders.[6]
[4] Applicant’s Submissions on Penalty, [46] referring to Hana Express Group Pty Ltd v Fair Work Ombudsman [2020] FCCA 54, at [14] (Judge Driver); Hindu Society Of Victoria (Australia) Inc v Fair Work Ombudsman [2016] FCCA 221, at [20]-[25] (Judge Riethmuller)
[5] Applicant’s Submissions on Penalty, [48]
[6] Applicant’s Submissions on Penalty, [53], and the cases referred to in fn 50
In relation to the second of the two doubts I raised in my earlier reasons, counsel for the FWO submitted a notice given under s 716 of the FW Act is not conclusive or penal in nature, and, for that reason, the inspector who issued the notice did not purport to exercise judicial power.
Determination
The doubts I expressed in my earlier reasons did not relate to whether s 716 of the FW Act purports to confer the judicial power of the Commonwealth on inspectors who are authorised to give a notice under s 716. Nor did my doubts relate to whether, by giving the Compliance Notice, the inspector purported to exercise judicial power. My doubts were directed to whether the Court has power under s 545(1) of the FW Act to make orders to the effect of the Proposed Orders; and my doubts raise two questions:
(a)If made, would the Proposed Orders assume that the giving of the Compliance Notice conclusively determined that SWB contravened s 90(2) of the FW Act, being the provision the inspector who gave the Contravention Notice reasonably believed SWB contravened?
(b)Does s 545(1) of the FW Act, properly construed, permit the Court to make orders to the effect of the Proposed Orders?
Having considered counsel’s submissions, the first of these two questions must be answered in the negative. The making of the Proposed Orders would be premised on the Compliance Notice being valid, which in turn would be premised on the inspector who gave it having held a reasonable belief at the time he gave the Compliance Notice that SWB contravened s 90(2) of the FW Act. The making of the Proposed Orders, therefore, would not be premised on SWB having in fact contravened s 90(2) of the FW Act. The consequence of the Compliance Notice being valid is that SWB came under an obligation to comply with it; and SWB remains liable to comply with it.
Given that SWB remains liable to comply with the Compliance Notice, it is within the scope of s 545(1) and (2) of the FW Act for the Court to make an order in the nature of a mandatory injunction requiring SWB to do that which the Compliance Notice requires SWB to do. The Proposed Orders, if made, would require SWB to do no more than that which the Compliance Notice required it to do. I am satisfied it is appropriate to make orders to the effect of the Proposed Orders, and I will do so. I will, however, reserve to SWB liberty to apply to be discharged from that part of the Proposed Orders that require it to pay money. I propose to do that because it is not my intention to make an order that is incapable of being obeyed, and thus expose SWB and its controller, Mr Sunna, to enforcement proceeding of an order that is incapable of being obeyed.
PENALTY
Power and principles
Subsection 546(1) of the FW Act provides that this Court may, on application, order a person to pay a pecuniary penalty the Court considers is appropriate if the Court is satisfied the person has contravened a “civil remedy provision”.[7] That expression is defined in s 539(1) of the FW Act to include the provisions identified in column 1 of the table to s 539(2) of the FW Act. Subsection 716(5) is in column 1 of the table to s 539(2) of the FW Act.
[7] I repeat in this and the following 4 paragraphs what I said in Bevis v VA Holdings Pty Ltd trading as Granton Homes & Ors [2020] FCCA 2082, at [33]-[38]
Subsection 546(2) of the FW Act provides that the pecuniary penalty the Court may impose must not, where the person is an individual, be more than “the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)” and, if the person is a body corporate, must not be more than five times “the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)”. The maximum penalty units for a contravention of s 716(5) of the FW Act as at 31 March 2020[8] (excluding “serious contraventions”, as defined in s 557A of the FW Act) are 30 penalty units for an individual, and 150 penalty units for a body corporate. Section 12 of the FW Act provides that “penalty unit” has the meaning given by s 4AA of the Crimes Act 1914 (Cth). The penalty unit provided for by s 4AA of that Act as at 31 March 2020 was $210. Thus, $31,500 is the maximum penalty SWB may be ordered to pay for its contravention of s 716(5) of the FW Act, and $6,300 is the maximum penalty Mr Sunna may be ordered to pay for SWB’s contravention of s 716(5) of the FW Act.
[8] Paragraph 9(a) of the Statement of Claim alleges the Compliance Notice required SWB to take the actions specified in the Compliance Notice by 31 March 2020.
The approach of most judges when assessing penalties for a single contravention of a provision of the FW Act is to take into account the non-exhaustive considerations Tracey J identified in Kelly v Fitzpatrick,[9] which his Honour adopted from the judgment of Mowbray FM in Mason v Harrington Corporation Pty Ltd. [10] Those considerations are:
[9] Kelly v Fitzpatrick [2007] FCA 1080, at [14]
[10] Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
(a)the nature and extent of the conduct which led to the breaches;
(b)the circumstances in which that conduct took place;
(c)the nature and extent of any loss or damage sustained as a result of the breaches;
(d)whether there had been similar previous conduct by the respondent;
(e)whether the breaches were properly distinct or arose out of the one course of conduct;
(f)the size of the business enterprise involved;
(g)whether or not the breaches were deliberate;
(h)whether senior management was involved in the breaches;
(i)whether the party committing the breach had exhibited contrition;
(j)whether the party committing the breach had taken corrective action;
(k)whether the party committing the breach had cooperated with the enforcement authorities;
(l)the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m)the need for specific and general deterrence.
Also relevant is the maximum penalty for the contravention provided for by the FW Act; and here I refer to the following passage from the judgment of Flick J in The BKH Contractors Case (No 2):[11]
In undertaking the task of assessing and quantifying the penalties to be imposed, the maximum penalty prescribed by the Commonwealth legislature for a specific contravention serves as a “yardstick” against which the assessment of penalties is generally to proceed . . . .
[11] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563, at [19]
I propose to consider the significance of factors that are relevant to the assessment of penalty without distinguishing between SWB and Mr Sunna. As I noted in my earlier reasons, Mr Sunna was the sole director and controlling mind of SWB, he was responsible for the overall management and control of SWB, and for ensuring SWB complied with its legal obligations.
Nature, extent, circumstances, and deliberateness of the contravening conduct
The contravention consists of SWB failing to comply with the requirements of the Compliance Notice. There is no explanation for the failure. The statement of claim alleges, and SWB and Mr Sunna are taken to have admitted, that an inspector had a conversation with Mr Sunna in which Mr Sunna acknowledged SWB and Mr Sunna had been given the Compliance Notice, and that Mr Sunna understood his obligations to comply with its requirements. The statement of claim also alleges, and SWB and Mr Sunna are to be taken to have admitted, that Mr Sunna said he owed annual leave to Mr Rahman, but he would not be complying with the requirements of the Compliance Notice.
The following passage from the judgment of Judge Emmett in Fair Work Ombudsman v Viper Industries Pty Ltd apply to the nature of SWB’s contravention of s 716(2) of the FW Act:[12]
The Respondents’ intentional failure to comply with a mandatory notice issued by the workplace regulator is “conduct ... [which] undermines the utility and effectiveness of a fundamental object” [of] the FW Act. The failure to comply undermines and frustrates the powers conferred on Fair Work Inspectors, which are conferred for the purposes of providing an effective means of enforcing compliance with lawful minimum entitlements. There is a significant cost to the public by reason of the need to bring this matter before the court to enforce compliance.
[12] Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492, at [7], being [42] of FWO’s submissions
These are matters that weigh in favour of imposing a penalty at the higher end of the scale. Of particular significance is Mr Sunna’s and, consequently SWB’s wilfulness in not complying with the Compliance Notice.
Nature and extent of loss occasioned by contravention
In the FWO’s written submissions, it is submitted that on the evidence I should be satisfied that Mr Rahman was underpaid $10,577.00. That is said to be based on documents annexed to the affidavit of an inspector, Ms Casey. Ms Casey, however, does not undertake any calculations; and it is not apparent from the documents annexed to her affidavit what the loss is. That uncertainty is reflected in the Compliance Notice itself, and in the Proposed Orders. The Compliance Notice requires SWB to calculate the amount of leave Mr Rahman accrued. Thus, I am unable to make a finding of the extent of Mr Rahman’s loss.
Size and financial resources of SWB and Mr Sunna
The FWO accepts SWB no longer trades. In the email to Judge Baird’s associate Mr Sunna sent on 7 October 2020 to which I refer in my earlier reasons,[13] Mr Sunna said “the company does not earn an income at all and the business is no longer running”. Mr Sunna further said that “[o]ur contract was terminated abruptly during peak season and has left the company and myself in a great amount of debt”, Mr Sunna has lost his livelihood, and Mr Sunna currently has no job and is receiving benefits from Centrelink. Although these matters have not been recorded in an affidavit, I am prepared to accept them as evidence.
[13] Fair Work Ombudsman v Sails Waterfront Bar & Grill Pty Ltd [2021] FCCA 1511, at [7]
The difficulty, however, is that the email does not attempt to provide a complete representation of SWB’s or Mr Sunna’s financial position. Further, even though, if accepted, what Mr Sunna stated in his email could explain why amounts owing to Mr Rahman were not paid, it cannot explain why Mr Sunna did not cause SWB to comply with that part of the Compliance Notice which required it to provide information of the number of hours of leave that had accrued to Mr Rahman while an employee of SWB.
I do not propose to give any weight, positive or negative, in relation to the apparent poor financial position of SWB. I do, however, propose to give some weight to Mr Sunna’s financial position in favour of a lower penalty.
Deterrence
The FWO submits there is a need for specific deterrence in the case of Mr Sunna because he remains a director. I do not propose to give this factor any weight because SWB no longer trades, and Mr Sunna is SWB’s director.
General deterrence, however, calls for a different consideration. As Judge Jarrett observed in Fair Work Ombudsman v VS Investment Group Pty Ltd:[14]
The failure to comply with a notice properly issued by the applicant in the course of its investigations and the discharge of its statutory functions is serious. Recipients of such notices should be left under no misapprehension about their obligations to comply with those notices.
[14] Fair Work Ombudsman v VS Investment Group Pty Ltd [2013] FCCA 208, at [51]
The FWO relies on data contained in an industry profile of the café and restaurant industry from July 2015 to December 2020, and submitted that the data revealed that 5.3% of FWO disputes involve apprentices, and 8% of contraventions involve annual leave payments.
The penalty should be set at a level that should signal not only to employers in the restaurant and café industry, but to all employers that a wilful disregard of a notice lawfully issued will be met with a significant penalty.
Respondents’ submissions
Mr Sunna attended the hearing on penalties on behalf of himself and SWB. Mr Sunna said that he remembered someone contacting him “regarding this issue”, by which I understand Mr Sunna intended to mean the Compliance Notice, that he was “going through a rough time”, and “I tried everything I could, honestly”.[15] I then explained to Mr Sunna how the Court assesses a penalty after which Mr Sunna said he did not really know what to say. Mr Sunna said that the only thing he wished to refer to is the email he sent to Judge Baird’s associate to which I referred in my earlier reasons.[16] I asked Mr Sunna whether his position was that his email encapsulates everything Mr Sunna wished to say about the proceeding, including whether the Court should impose a penalty. Mr Sunna said that was his position.
[15] T22.30
[16] Fair Work Ombudsman v Sails Waterfront Bar & Grill Pty Ltd [2021] FCCA 1511, at [7]
I have already referred to what Mr Sunna’s email said about the financial circumstances of SWB and Mr Sunna. Mr Sunna also stated in his email that he is currently going through depression. Although there is no medical evidence to support this, I am prepared to assume that Mr Sunna is suffering from some form of depression.
Assessment
Given the deliberate, unexplained, and unremedied failure by Mr Sunna to cause SWB to comply with the Compliance Notice, and the need for general deterrence, the penalty should be assessed on the higher end of the scale. I am satisfied, however, that the factors pointing to assessing a penalty at the higher end of the scale should be to some extent ameliorated by the financial and personal position in which Mr Sunna finds himself.
As against SWB I find that $20,000 is an appropriate penalty for its contravention of s 716(5) of the FW Act, and that $3,000 is an appropriate penalty for Mr Sunna’s contravention of s 716(5) of the FW Act.
DISPOSITION
I propose to make the following orders:
(a)Orders in terms of the Proposed Orders.
(b)Orders under s 546 of the FW Act for the payment by SWB and Mr Sunna of the penalties I have determined each of SWB and Mr Sunna should pay.
(c)Orders that the pecuniary penalties be paid to the Commonwealth of Australia within 28 days after the day on which I will pronounce orders.
(d)I will reserve to the parties liberty to apply in relation to any question that may arise concerning the operation or implementation of these orders, such liberty to extend to SWB applying for the discharge or variation of order 1 on the ground of impossibility of compliance.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 27 August 2021
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