Fair Work Ombudsman v Security Protection Services Pty Ltd & Ors

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v SECURITY PROTECTION SERVICES PTY LTD & ORS [2010] FMCA 252

INDUSTRIAL LAW – WORKPLACE RELATIONS – Contraventions of award and collective agreement – previous history of contraventions – need for specific deterrence.

PENALTIES – Principles for fixing – totality principle.

Workplace Relations Act 1996, ss.185(2), 719, 728
Ikin v Crown Trading Group Pty Ltd & Anor [2009] FMCA 1187
Kelly v Fitzpatrick (2007) 166 IR 14
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited [2001] FCA 383
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2006) ATPR 42
Klousia v TKM Investments Pty Ltd & Anor [2009] FMCA 208
Workplace Ombudsman v Saya Cleaning Pty Ltd & Anor [2009] FMCA 38
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Lynch v Buckley Sawmills Pty Ltd [1984] FCA 306; 3 FCR 503, 508
PKIU and Others v Vista Paper Products Pty Ltd and Another (1994) 127 ALR 673
Cotis v MacPherson [2007] FMCA 2060 [12]; FMCA 2060; (2007) 169 IR 30
Inspector Trundle v M & K Angelopoulos Pty Ltd [2009] FMCA 37
Quinn v Martin (1977) 16 ALR 141
IanSeymour v Stawell Timbers Pty Ltd (1985) 70 ALR 391
Textile Clothing and Footwear Union of Australia v South Cross Clothing Pty Ltd [2006] FCA 325
McIver v Healey [2008] FCA 425
Australasian Meat Industry Employees Union v Meneling Station Pty Ltd [1987] 16 IR 245
Yorke v Lucas (1985) 158 CLR 661
Applicant: FAIR WORK OMBUDSMAN
First Respondent: SECURITY PROTECTION SERVICES PTY LTD
Second Respondent: NEIL STEWART RUUT
Third Respondent: CINDY MICHELLE RUUT
File Number: LNG 8 of 2009
Judgment of: Turner FM
Hearing date: 2 March 2010
Date of Last Submission: 1 April 2010
Delivered at: Melbourne
Delivered on: 13 April 2010

REPRESENTATION

Solicitors for the Applicant: Zeeman & Zeeman
Solicitors for the Respondents: Gunson Williams

ORDERS

  1. The Court imposes a total penalty of $136,900.00 on the second and third respondents jointly and severally.

  2. That the second and third respondents pay penalties totalling $136,900.00 within 60 days.

  3. That the matter be adjourned to 10am on 28 April 2010 in MELBOURNE in relation to the issues of to whom the penalties are to be paid and the applicant’s applications for interest and costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

LNG 8 of 2009

FAIR WORK OMBUDSMAN

Applicant

And

SECURITY PROTECTION SERVICES PTY LTD

First Respondent

NEIL STEWART RUUT

Second Respondent

CINDY MICHELLE RUUT

Third Respondent

REASONS FOR JUDGMENT

  1. This is an application under s.719 of the Workplace Relations Act 1996 (the “WRA”) for the imposition of penalties for the underpayment of 47 employees (Statement of Agreed Facts “SOAF” 2.2) engaged in the security and watching services industry in Tasmania.

  2. The applicant seeks the imposition of…

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Details
Case
[2010] FMCA 252
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman sought penalties against Security Protection Services Pty Ltd and two of its directors for multiple breaches of the award and collective agreement. The matter was heard in the Federal Circuit Court of Australia. The court was required to determine the appropriate penalties for the contraventions and consider the principles governing penalty imposition.

The court examined the nature and severity of the contraventions, the previous history of non-compliance by the respondents, and the need for specific deterrence. The court also considered the totality principle, which requires that the overall penalty be proportionate to the seriousness of the contraventions. In this case, the contraventions were serious, with multiple breaches occurring over an extended period. The court found that the respondents' previous history of non-compliance warranted a substantial penalty to ensure deterrence.

The court imposed a total penalty of $136,900.00 on the second and third respondents jointly and severally. The court directed that the penalties be paid within 60 days and adjourned the matter to address the issue of who should receive the penalties and the applicant's applications for interest and costs. The court's decision was based on the seriousness of the contraventions, the need for specific deterrence, and the totality principle.

Orders

Orders of the court

1.

The Court imposes a total penalty of $136,900.00 on the second and third respondents jointly and severally.

2.

That the second and third respondents pay penalties totalling $136,900.00 within 60 days.

3.

That the matter be adjourned to 10am on 28 April 2010 in MELBOURNE in relation to the issues of to whom the penalties are to be paid and the applicant’s applications for interest and costs.

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

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