Fair Work Ombudsman v Sawdy
[2024] FedCFamC2G 393
•1 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Sawdy [2024] FedCFamC2G 393
File number(s): BRG 71 of 2022 Judgment of: JUDGE EGAN Date of judgment: 1 May 2024 Catchwords: INDUSTRIAL LAW – where respondent failed to pay entitlements due to employees at the conclusion of their employment – where respondent co-operated with the applicant in resolving the proceeding – where a Statement of Agreed Facts helpfully filed – where declarations and orders made accordingly. Legislation: Fair Work Act 2009 (Cth), ss 546(1), 716(5) Division: Division 2 General Federal Law Number of paragraphs: 7 Date of last submission/s: 28 March 2024 Date of hearing In Chambers on the papers Place: Brisbane Solicitor for the Applicant: Mr L Reece, Fair Work Ombudsman Solicitor for the Respondent: Mr D Quinn, Holding Redlich ORDERS
BRG 71 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: TROY MALCOLM SAWDY
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
1 MAY 2024
BY CONSENT IT IS DECLARED THAT:
1.The Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) by failing to comply with the Sulivan and Bear Compliance Notice issued on 29 June 2021.
2.The Respondent contravened section 716(5) of the Fair Work Act 2009 (Cth) by failing to comply with the Desmond Compliance Notice issued on 31 March 2021.
AND IT IS ORDERED THAT:
1.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth), within 28 days of the date of this Order, the Respondent pay a total pecuniary penalty of $7,400.00 to the Consolidated Revenue Fund of the Commonwealth of Australia for the contraventions declared at Orders 1 and 2 hereof.
2.The Applicant have liberty to apply on the giving of seven (7) 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 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 EGAN
INTRODUCTION
The respondent (Sawdy) carried on a pastoral business known as “Sawdy Pastoral Company”. Such business had had issued to it an Australian Business Number.
Sawdy was, accordingly, in respect of the employment of three employees respectively named Sullivan, Bear and Desmond, governed by the provisions of the Fair Work Act 2009 (Cth) (the FWA).
At the conclusion of each of the above-named employees’ terms of employment with Sawdy, Sawdy failed to meet his obligations under the FWA by paying to them their due entitlements.
The relevant history of the matter was as set out in a Statement of Agreed Facts filed on 21 December 2023, the content of which was as follows:
A. OVERVIEW OF AGREED CONTRAVENTIONS
1. On the basis of the facts set out below, the Respondent, Troy Malcolm Sawdy, agrees that he contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) on two occasions by failing without reasonable excuse to comply with:
(a)a compliance notice given to him on 29 June 2021 (Sullivan and Bear Compliance Notice) in relation to alleged contraventions of the FW Act in respect of his employment of Sophia Sullivan and Francesca Bear; and
(b)a compliance notice given to him on 31 March 2021 (Desmond Compliance Notice) in relation to alleged contraventions of the FW Act in respect of his employment of Lisa Desmond.
B. THE PARTIES
The Applicant
2. The Applicant, the Fair Work Ombudsman, is and was at all relevant times:
(a)a statutory appointee of the Commonwealth pursuant to section 687(1) of the Fair Work Act 2009 (Cth) (FW Act);
(b)a Fair Work Inspector (FWI) pursuant to section 701 of the FW Act; and
(c)a person with standing to bring these proceedings and to apply for orders for contraventions of civil remedy provisions pursuant to section 539(2) of the FW Act.
3. Ke Yu Ma, also known as Kez Ma (FWI Ma), is and was at all relevant times a FWI appointed by the Applicant under section 700 of the FW Act.
The Respondent
4. The Respondent, Troy Malcolm Sawdy, is and was at all times:
(a) a natural person capable of being sued;
(b) a “national system employer” within the meaning of section 14 of the FW Act, as extended by section 30N(1) of the FW Act;
(c) a sole traer holding the Australian Business Number 86 448 026 493 and wo operated a business known as Sawdy Pastoral Company (Business); and
(d) by reason of the matters pleaded in paragraphs 4(b) and 4(c) above, covered by the FW Act in respect of his employees.
C. AGREED CONTRAVENTIONS OF SECTION 716(5) OF THE FW ACT
Sullivan and Bear Compliance Notice
5. In or around August 2020, FWI Ma commenced an investigation into the Respondent’s compliance with the FW Act in respect of Ms Sophia Sullivan and Ms Francesca Bear (Sullivan and Bear Investigation).
6. Following the Sullivan and Bear Investigation, FWI Ma formed a belief that:
(a) the Respondent employed Ms Bear and Ms Sullivan between 13 July 2020 to 2 August 2020 (Sullivan and Bear Employment Period);
(b) the Miscellaneous Award 2020 (Award) covered and applied to Ms Sullivan and Ms Bear;
(c) Ms Sullivan and Ms Bear were employed on a full-time basis;
(d) Ms Sullivan and Ms Bear were level 1 employees under the Award;
(e) during the Sullivan and Bear Employment Period, the Respondent did not pay Ms Bear and Ms Sullivan the applicable minimum weekly rate under the Award for level 1 employees;
(f) during the Sullivan and Bear Employment Period, the Respondent did not pay Ms Bear and Ms Sullivan overtime rates prescribed by the Award when they worked hours in excess of 38 hours per week; and
(g) when Ms Sullivan’s and Ms Bear’s employment ended, the Respondent did not pay either of them their entitlements to untaken accrued annual leave, including annual leave loading payable under the Award.
7. By reason of the matters set out at paragraph 6 above, FWI Ma formed a reasonable belief within the meaning of section 716(1)(a) of the FW Act that the Respondent had contravened the following provisions in respect of Ms Sullivan and Ms Bear (Sullivan and Bear Contraventions) between 13 July and 9 August 2020 (Sullivan and Bear Contravention Period):
(a) clause 15.1 of the Award by failing to pay the applicable minimum rates (Sullivan and Bear Minimum Rates Contravention);
(b)clause 19.1(a) of the Award by failing to pay overtime rates (Sullivan and Bear Overtime Contravention); and
(c)section 90(2) of the FW Act by failing to pay accrued and untaken annual leave entitlements on termination of employment, including annual leave loading payable under the Award (Sullivan and Bear Annual leave Contravention).
8. On 29 June 2021, FWI Ma gave the Respondent a compliance notice in respect of the Sullivan and Bear Contraventions pursuant to section 716(2) of the FW Act (Sullivan and Bear Compliance Notice), by sending it via express post to a known address of the Respondent, namely xx xx Drive, xxx, XXX XXXX (XX Address). A copy of the Sullivan and Bear Compliance Notice was also sent by FWI Ma on 5 July 2021 via email to the Respondent at [email protected] and [email protected].
9. Pursuant to section 716(2) of the FW Act, the Sullivan and Bear Compliance Notice required the Respondent to:
(a)remedy the direct effects of the Sullivan and Bear Minimum Rates Contravention and the Sullivan and Bear Overtime Contravention by taking the following specified actions by 30 July 2021, in respect of each contravention:
(i)identify the hours worked by Ms Sullivan and Ms Bear during the Sullivan and Bear Contravention period;
(ii)identify the amount the Respondent paid to Ms Sullivan and Ms Bear during the Sullivan and Bear Contravention Period;
(iii)calculate the amount the Respondent should have paid to Ms Sullivan and Ms Bear during the Sullivan and Bear Contravention Period in accordance with the award;
(iv)make a payment to Ms Sullivan and Ms Bear of the difference between the amounts referred to at 9(a)(ii) and 9(a)(iii) above; and
(v)make a record of the information and amounts referred to at 9(a)(i) to 9(a)(iii) and the amount of the payment referred to at 9(a)(iv) (Sullivan and Bear Underpayment Rectification Information);
(b)remedy the direct effects of Sullivan and Bear Annual Leave Contravention by taking the following specified action by 30 July 2021:
(i)identify the number of hours of annual leave Ms Sullivan and Ms Bear had accrued in respect of which annual leave on termination was required to be paid under section 90(2) of the FW Act;
(ii)identify the amount the Respondent paid to Ms Sullivan and Ms Bear on termination for annual leave;
(iii)calculate the amount the Respondent should have paid to Ms Sullivan and Ms Bear for annual leave on termination that was required to be paid under s 90(2) of the FW Act including applicable annual leave loading under clause 21.3 of the Award;
(iv)make a payment to Ms Sullivan and Ms Bear of the difference between the amount referred to at 9(b)(ii) and 9(b)(iii) immediately above; and
(v)make a record of the information and amounts referred to at 9(b)(i) to 9(b)(iii) and the amount of payment referred to in 9(b)(iv) (Sullivan and Bear Annual Leave Rectification Information);
(c)calculate and pay any additional superannuation contributions required by clause 18 of the Award in respect of the amounts owed to Ms Sullivan and Ms Bear; and
(d)produce reasonable evidence to the Applicant of his compliance with the Sullivan and Bear Compliance Notice by 6 August 2021 by producing:
(i)a schedule that sets out the Sullivan and Bear Underpayment Rectification Information, the Sullivan and Bear Annual Leave Rectification Information, and calculations of any additional superannuation contributions set out at 9(c) above; and
(ii)proof that the payments required as set out at 9(a) to (c) above were made to Ms Sullivan and Ms Bear.
10. The Sullivan and Bear Compliance Notice met the requirements of section 716(3) of the FW Act.
11. The Respondent did not:
(a)take the specified action set out in the Sullivan and Bear Compliance Notice by 30 July 2021; or
(b)produce to the Applicant reasonable evidence of compliance with the Sullivan and Bear Compliance Notice by 6 August 2021, or at all.
12. By reason of the matters set out at paragraphs 8 to 11 above, the Respondent
(a) failed to comply with the Sullivan and Bear Compliance Notice; and
(b) as a result, contravened section 716(5) of the FW Act.
Desmond Compliance Notice
13. In or around January 2021, FWI Ma commenced an investigation into the Respondent’s compliance with the FW Act in respect of Ms Lisa Desmond (Desmond Investigation).
14. Following the Desmond Investigation, FWI Ma formed a belief that:
(a)the Respondent employed Ms Desmond between 10 August 2020 and 8 December 2020 (Desmond Employment Period);
(b) the Award covered and applied to Ms Desmond;
(c) Ms Desmond was employed on a full-time basis;
(d)Ms Desmond was a level 1 employee between 10 August 2020 to 10 November 2020, and a level 2 employee between 11 November and 8 December 2020 under the Award;
(e)during the Desmond Employment Period, the Respondent did not pay Ms Desmond the applicable minimum weekly rate under the Award;
(f)during the Desmond Employment Period, the Respondent did not may Ms Desmond overtime rates prescribed by the Award when she worked hours in excess of 38 hours per week; and
(g)when Ms Desmond’s employment ended, the Respondent did not pay her her entitlements to untaken accrued annual leave, including annual leave loading payable under the Award.
15. By reason of the matters pleaded in paragraph 14 above, FWI Ma formed a reasonable belief within the meaning of section 716(1)(a) of the FW Act that the Respondent had contravened the following provisions in respect of Ms Desmond (Desmond Contraventions)between 10 August 2020 and 15 December 2020 (Desmond Contravention Period):
(a)clause 15.1 of the Award by failing to pay the applicable minimum rates (Desmond Minimum Rates Contravention);
(b)clause 19.1(a) of the Award by failing to pay overtime rates (Desmond Overtime Contravention); and
(c)section 90(2) of the FW Act by failing to pay accrued and untaken annual leave entitlements on termination of employment, including annual leave loading payable under the Award (Desmond Annual Leave Contravention).
16. On 31 March 2021, FWI Ma gave the Respondent a compliance notice in respect of the Desmond Contraventions pursuant to section 716(2) of the FW Act (Desmond Compliance Notice), by sending it via express post to the xx Address and via email to the Respondent at [email protected].
17. Pursuant to section 716(2) of the FW Act, the Desmond Compliance Notice required the Respondent to:
(a)remedy the direct effects of the Desmond Minimum Rates Contravention and the Desmond Overtime Contravention by taking the following specified actions by 7 May 2021, in respect of each contravention;
(i)identify the hours worked by Ms Desmond during the Desmond Contravention Period;
(ii) identify the amount the Respondent paid to Ms Desmond during the Desmond Contravention Period;
(iii)calculate the amount the Respondent should have paid to Ms Desmond during the Desmond Contravention Period in accordance with the Award;
(iv)make a payment to Ms Desmond of the difference between the amounts referred to at 17(a)(ii) and 17(a)(iii) above;
(v)make a record of the information and amounts referred to at 17(a)(i) to 17(a)(iii) and the amounts of the payment referred to at 17(a)(iv) (Desmond Underpayment Rectification Information);
(b)remedy the direct effects of the Desmond Annual Leave Contravention by taking the following specified action by 7 May 2021:
(i)identify the number of hours of annual leave Ms Desmond had accrued in respect of which annual leave on termination was required to be paid under section 90(2) of the FW Act;
(ii)identify the amount the Respondent paid to Ms Desmond on termination for annual leave;
(iii)calculate the amount the Respondent should have paid to Ms Desmond for annual leave on termination that was required to be paid under section 90(2) of the FW Act including applicable annual leave loading under clause 21.3 of the Award;
(iv)make a payment to Ms Desmond of the difference between the amount referred to at 17(b)(ii) and 17(b)(iii) immediately above; and
(v)make a record of the information and amounts referred to at 17(b)(i) to 17(b)(iii) and the amount of payment referred to in 17(b)(iv) (Desmond Annual Leave Rectification Information);
(c)calculate and pay any additional superannuation contributions required by clause 18 of the Award in respect of the amounts owed to Ms Desmond; and
(d)produce reasonable evidence to the Applicant of his compliance with the Desmond Compliance Notice by 14 May 2021 by producing:
(i)a schedule that sets out the Desmond Underpayment Rectification Information and the Desmond Annual leave Rectification Information, and calculations of any additional superannuation contributions calculated at 17(c) above; and
(ii)proof that payment required as set out at 17(a) to (c) above were made to Ms Desmond.
18. The Desmond Compliance Notice met the requirements of section 716(3) of the FW Act.
19. The Respondent did not:
(a)take the specified action set out in the Desmond Compliance Notice by 7 May 2021; or
(b)produce to the Applicant reasonable evidence of compliance with the Desmond Compliance Notice by 14 May 2021.
20. By reasons of the matters set out at paragraph 16 to 19 above, the Respondent:
(a) failed to comply with the Desmond Compliance Notice; and
(b) as a result, contravened section 716(5) of the FW Act.
D. RECTIFICATION BY THE RESPONDENT
21. On 17 July 2023, the Respondent provided to the Applicant calculations of the amounts outstanding to each of the employees pursuant to the Sullivan and Bear Compliance Notice and the Desmond Compliance Notice.
22. In September and October 2023, the Respondent rectified his non-compliance with the Sullivan and Bear Compliance notice by paying the following amounts:
(a)$1,559.80 (gross) plus superannuation, to Ms Bear inclusive of interest; and
(b)$1559.80 (gross) plus superannuation, to Ms Sullivan inclusive of interest.
23. In September 2023, the Respondent rectified his non-compliance with the Desmond Compliance Notice by paying the following amounts to Ms Desmond:
(a) $6,328.9 (gross) plus superannuation, inclusive of interest.
E. AGREED RELIEF
24. By consent, the parties seeking the declarations and orders set out below.
25. Declarations that the Respondent contravened:
(a)section 716(5) of the FW Act by failing to comply with the Sullivan and Bear Compliance Notice; and
(b)section 716(5) of the FW Act by failing to comply with the Desmond Compliance Notice.
26. Orders that:
(a)pursuant to section 546(1) of the FW Act, within 28 days of the date of this order, the Respondent pay a total pecuniary penalty of $7,400 to the Commonwealth for the contraventions declared at paragraph 25 above;
(b)the Applicant have liberty to apply of seven days’ notice in the event that any of the preceding orders are not complied with; and
(c) such further orders as the Court considers appropriate.
Sawdy has paid to the three employees their due entitlements, and he has otherwise co-operated with the Fair Work Ombudsman in the proceeding.
The Court considers that the proposed declarations and orders as set out in [25] and [26] of the SOAF in all respects appropriate, and that the agreed pecuniary penalty is also appropriate.
And it is so ordered.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 1 May 2024
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