Fair Work Ombudsman v Sellick

[2024] FedCFamC2G 564

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Sellick [2024] FedCFamC2G 564   

File number(s):	BRG 462 of 2023
Judgment of:	JUDGE EGAN
Date of judgment:	25 June 2024
Catchwords:	INDUSTRIAL LAW - Where respondent underpaid his employee – where applicant served a Compliance Notice upon the respondent – where the respondent co-operated with the applicant during the course of the proceeding and remedied all underpayments – where a Statement of Agreed Facts was filed – declaration 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:	5 June 2024
Date of hearing:	31 October 2023
Place:	Brisbane
Solicitor for the Applicant:	Ms Hannaford, Fair Work Ombudsman
Respondent:	Mr Sellick appearing on his own behalf

ORDERS

BRG 462 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

JEFFERY SELLICK

Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	25 JUNE 2024

IT IS DECLARED THAT:

1.The Respondent contravened the provisions of s. 716(5) of the Fair Work Act 2009 (Cth) (‘the Act’) by failing to comply with a Compliance Notice provided to him and dated 3 November 2022.

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

1. The respondent operated a shoe and bag repair and key-cutting business from premises situated at Robina in the State of Queensland.

2. In or about July 2022, the applicant commenced an investigation into the circumstances surrounding the employment by the respondent of one Jodi McIntosh. Ms McIntosh had been employed by the applicant from on or about 11 April 2022 until on or about 12 June 2022.

3. On 3 November 2022, one of the applicant’s inspectors provided a compliance notice to the respondent requiring him to remedy underpayments made to Ms McIntosh as identified in the compliance notice.

4. On 5 June 2024, a Statement of Agreed Facts (SOAF) jointly executed by the solicitor for the applicant and the respondent was filed. The agreed facts were as follows:

   STATEMENT OF AGREED FACTS

   This Statement of Agreed Facts is made by the Applicant, the Fair Work Ombudsman and the Respondent for the purposes of section 191 of the Evidence Act 1995 (Cth).

   A. OVERVIEW OF ADMISSIONS

   1. The Respondent, Jeffery Sellick admits that he contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with a compliance notice issued on 3 November 2022 (Compliance Notice) by Fair Work Inspector (FWI) Ryan Keyhoe (FWI Keyhoe) pursuant to section 716(2) of the FW Act.

   B. AGREED FACTS

   The Applicant

   2.        The Applicant, the Fair Work Ombudsman, is and was at all relevant times:

   (a) a statutory appointee of the Commonwealth appointed by the Governor General by written instrument pursuant to section 687(1) of the Fair Work Act 2009 (Cth) (FWAct);

   (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. FWI Keyhoe and FWI Christine Maree Cox (FWI Cox) were at all relevant times FWIs appointed under section 700 of the FW Act.

   The Respondent

   4.        The Respondent, is and was at all relevant times:

   (a)       a natural person capable of being sued;

   (b)       a sole trader holding the Australian Business Number 95 837 647 479;

   (c) operating a shoe and bag repairs and key cutting business trading as ‘Multi Services’ in the state of Queensland (Business), with a business address of Shop K4-15 Robina Town Centre, 19 Robina Town Centre Dr, Robina Qld 4226 (Business Address);

   (d) a “national system employer” within the meaning of section 14 of the FW Act, as extended by section 30N(1) of the FW Act; and

   (e) by reason of the matters agreed in paragraphs 4(b)-(d) above, covered by the FW Act in respect of his employee(s)

   C. CONTRAVENTION OF SECTION 716(5) OF THE FW ACT

   The Investigation

   5. In or around July 2022, the Applicant commenced an investigation into the Respondent in respect of his employment of Jodi Louise McIntosh (Investigation)

   6.        As a result of the Investigation, FWI Keyhoe formed a belief that:

   (a) the Respondent employed Ms McIntosh as a full-time employee from 11 April 2022 to 12 June 2022 (Employment Period);

   (b) the FW Act covered and applied to Ms McIntosh's employment during the Employment Period;

   (c) the General Retail Industry Award 2020 (Award), a modern award under the FW Act, covered and applied to the Respondent in respect of Ms McIntosh's employment during the Employment Period;

   (d) Ms McIntosh was entitled to be classified and paid as a Retail Employee Level 1 under the Award during the Employment Period;

   (e)       Ms McIntosh was paid a flat rate of:

   (i) $20 per hour for all hours worked from 11 April to 8 May 2022;

   (ii)       $24 per hour for all hours worked from 9 to 15 May 2022; and

   (iii)      $30 per hour for all hours worked from 16 May to 5 June 2022.

   (f) Ms McIntosh was not paid anything for work performed on 6 or 12 June 2022;

   (g) during the Employment Period, Ms McIntosh's hours of work included regular Sunday work;

   (h)       during the Employment Period, Ms McIntosh was not paid:

   (i) the applicable minimum wage for a Retail Employee Level 1 from 11 April 2022 to 8 May 2022; and

   (ii) the applicable Sunday penalty rate for all work performed on Sundays;

   (i)Ms McIntosh’s employment was terminated by the Respondent with immediate effect on 12 June 2022; and

   (j)        upon the termination of her employment, Ms McIntosh was not paid:

   (i)her accrued annual leave entitlements; and

   (ii) payment in lieu of notice.

   7.By reason of the matters agreed in paragraph 6 above, FWI Keyhoe formed a reasonable belief, within the meaning of section 716(1)(b) of the FW Act, that the Respondent had contravened:

   (a)clause 17.1 of the Award, by failing to pay Ms McIntosh the minimum rate for a Level 1 Retail Employee (Ordinary Hours);

   (b)clause 22.1 (a) of the Award, by failing to pay Ms McIntosh 150% of her minimum hourly rate for hours worked on Sundays (Sunday Hours);

   (c)section 90(2) of the FW Act, by failing to pay Ms McIntosh her accrued untaken paid annual leave on the termination of her employment; and

   (d)section 117 of the FWAct, by failing to pay Ms McIntosh payment in lieu of notice of the termination of her employment, (together, the Contraventions).

   Compliance Notice

   8.On 3 November 2022, FWI Keyhoe gave a compliance notice to the Respondent pursuant to section 716(2) of the FW Act (Compliance Notice) in respect of the Contraventions. In particular:

   (a)on 3 December 2022 at around 1.36pm, FWI Cox, on behalf of FWI Keyhoe, personally served a copy of the Compliance Notice on the Respondent at the Business Address; and

   (b)a copy of the Compliance Notice was also sent to the Respondent by email to '[email protected]' on 3 November 2022.

   9.Pursuant to section 716(2) of the FW Act, the Compliance Notice required the Respondent to:

   (a)take the following actions to remedy the direct effects of the Contraventions by 1 December 2022 (Specified Action):

   (i)calculate and pay amounts owed to Ms McIntosh in respect of each of the Contraventions;

   (ii)calculate and pay to Ms McIntosh's chosen superannuation fund any additional superannuation required to be paid in respect of the amounts referred to in paragraph 9(a)(i); and

   (ii)make a record of the information and amounts referred to in paragraph 9(a)(i) and 9(a)(ii) (Underpayment Rectification Information); and

   (b)produce reasonable evidence to the Applicant of compliance with the Compliance Notice by 8 December 2022, by producing the Underpayment Rectification Information, and proof that full payment was made as required by paragraphs 9(a)(i) and 9(a)(ii).

   10. The Compliance Notice met the requirements of section 716(3) of the FW Act.

   Failure to comply with the Compliance Notice

   11.      The Respondent has failed to:

   (a) take the Specified Action set out in the Compliance Notice by 1 December 2022, or at all; and

   (b) to produce evidence of compliance with the Compliance Notice by 8 December 2022, or at all.

   12. By reason of the matter agreed in paragraph 11 above, the Respondent has failed to comply with the Compliance Notice.

   13.By reason of the matter agreed in paragraphs 11 and 12 above, the Respondent has contravened section 716)5) of the FW Act.

   Amount agreed under the Compliance Notice

   14.The parties have agreed that the Respondent is considered to have remedied the direct effects of the Contraventions set out in the Compliance Notice by paying to Ms Mel ntosh the amount of $2,754.04 (gross) (Underpayment) plus superannuation, comprised of:

   (a)$557.12 in respect of Ordinary Hours and Sunday Hours for work performed by Ms McIntosh between 11 April and 8 May 2022;

   (b)$1,200.00 in respect for of payment in lieu of notice of termination (PILN); and

   (c)$996.92 in respect of accrued untaken annual leave payable on termination.

   Rectification

   15.On 3 October 2023, the Respondent paid $996.92 (gross) to Ms McIntosh in respect of the Underpayment for her accrued untaken annual leave payable on termination.

   16.Between 11 March 2024 and 14 May 2024, the Respondent rectified:

   (a)the remaining Underpayment of $1,757.12 (gross) in respect of Ms McIntosh’s outstanding wages and PILN; and

   (b)$193.28 in respect of superannuation.

   D. RELIEF SOUGHT

   17.The parties’ agree that it is appropriate for the Application filed on 21 September 2023 in respect of this matter be resolved on the basis that:

   (a)the Court make a declaration that the Respondent contravened section 716(5) of the FW Act by failing to comply with the Compliance Notice dated 3 November 2022; and

   (b)the Applicant does not seek pecuniary penalties pursuant to section 546(1) of the FW Act in respect of the contravention.

5. The respondent has paid to Ms McIntosh all monies due and owing to her, and he has otherwise co-operated with the Fair Work Ombudsman in the proceeding. The Court considers that the proposed declaration as provided for in [17(a)] of the SOAF is in all respects appropriate.

6. The Court further considers that, in the circumstances, it was appropriate that the applicant not proceed to seek pecuniary penalties against the respondent pursuant to the provisions of s. 546 (1) of the Act.

7. 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:       25 June 2024