FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Singh [2023] FedCFamC2G 684
File number: MLG 4576 of 2019 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 3 August 2023 Catchwords: INDUSTRIAL LAW – Fair Work Ombudsman – pecuniary penalties – contraventions of s 45 of the Fair Work Act 2009 (Cth) – declarations made by consent in respect of the Respondents – appropriate penalties – principles of penalties applied – relevant factors considered – penalties ordered Legislation: Fair Work Act 2009 (Cth) ss 45, 539(2), 546, 550 and 557
Fair Work Regulations 2009 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Cleaning Services Award 2010 (Cth) cls 12.5, 16.1, 20.1, 27.1(a), 27.2(a) and (b), 27.3, 28.2, 28.3, 28.4, and cl D.1, sch D
Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482
Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39
Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128
Fair Work Ombudsman v A to Z Catering Solution Pty Ltd (No 3) [2018] FCCA 3574
Fair Work Ombudsman v Commercial and Residential Cleaning Group Pty Ltd [2017] FCCA 2838
Fair Work Ombudsman v First Group of Companies Pty Ltd [2018] FCCA 1228
Fair Work Ombudsman v NHS North Pty Ltd trading as Shanghai Charlestown [2017] FCA 1301
Fair Work Ombudsman v Priority Matters Pty Ltd (No 5) [2020] FCCA 901
Kelly v Fitzpatrick [2007] FCA 1080
Markarian v The Queen (2005) 228 CLR 357
Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70
Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62
Division: Division 2 General Federal Law Number of paragraphs: 111 Date of last submissions: 27 July 2021 Date of hearing: 27 July 2021 Place: Melbourne (by videoconference) Counsel for the Applicant: Ms Dowsett Solicitor for the Applicant: Australian Government Solicitor Solicitor for the First Respondent: Mendis & Gibson Lawyers Counsel for the Second Respondent: Ms Minucci Solicitor for the Second Respondent: Colin Biggers & Paisley ORDERS
MLG 4576 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: HARJOT SINGH
First Respondent
QUAYCLEAN AUSTRALIA PTY LTD (ACN 102 238 933)
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
3 August 2023
THE COURT DECLARES BY CONSENT THAT:
1.Mr Harjot Singh (First Respondent) was, pursuant to ss 550(1) and 550(2)(c) of the Fair Work Act 2009 (Cth) (FW Act), involved in the contraventions by Lionheart Workforce…
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- Case
- [2023] FedCFamC2G 684
- Decision Date
CaseChat Overview and Summary
The court found that both respondents had deliberately engaged in the contravening conduct. The first respondent had underpaid employees and failed to rectify the underpayments promptly. The second respondent had also underpaid employees and had engaged in conduct that obstructed the Fair Work Commissioner's investigation. The court considered the threshold requirement for a discount on penalty for cooperation, contrition and corrective action as set out in Mornington Inn Pty Ltd v Jordan. The first respondent had cooperated with the investigation and expressed remorse for his conduct, leading to a penalty discount of 20%. The second respondent had not cooperated with the investigation and had obstructed the Fair Work Commissioner's site visit, leading to a penalty of $102,600. The court also considered other relevant factors, such as the seriousness of the contraventions and the need for deterrence, in determining the appropriate penalties.
In conclusion, the court found that the first respondent should pay a penalty of $28,512 and the second respondent should pay a penalty of $102,600 within 90 days of the Court’s Orders. The court also made declarations and Orders accordingly. The court's decision provides guidance on the factors that should be considered in determining penalties for contraventions of the Fair Work Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
I am therefore satisfied that the Second Respondent deliberately engaged in the contravening conduct. Cooperation, Contrition and Corrective Action The threshold requirement for a discount on penalty for cooperation is set out by the Full Court of the Federal Court in Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70, at [76]:76. […] the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice. First Respondent Upon investigation by the Fair Work Commissioner commencing October 2017, the First Respondent learned that he had contravened the FW Act and was requested to pay all outstanding amounts to the Employees. He submits he cooperated with the investigation, providing all records and documentation, and paid the Employees ‘immediately’.[40][40] First Singh Affidavit, [11]-[12]; Third Singh Affidavit, [12]. Upon commencement of the proceedings in this Court, the First Respondent admitted to all contraventions and consented to the making of declarations against him and orders that he pay penalties. As such, there was no need for a liability hearing against the First Respondent, saving the Court time and resources. The First Respondent has also expressed remorse for his conduct resulting in the contraventions on a number of occasions.[41][41] First Singh Affidavit, [18]; Third Singh Affidavit, [16] and [17]. In light of the First Respondent’s cooperation and contrition, in particular his rectification of the underpayments to the Employees within the timeframe requested, I consider that a penalty discount of 20% for the First Respondent is appropriate. Second Respondent The investigation into the Second Respondent began in September 2017 with a site visit to the Stadium. In the Piwkowski Affidavit, Mr Piwkowski, CEO of the Second Respondent during the Relevant Period, states that the site visit was conducted without prior warning and ‘surprised’ him and the staff.[42] He recalls a phone conversation with Fair Work Inspector Ms Jonceski, after which he advised a staff member on-site that the site visit should proceed whilst regular cleaning duties were being completed.[43][42] Affidavit of Mark Piwkowski, affirmed and filed 7 June 2021 (Piwkowski Affidavit), [27]-[28]. [43] Piwkowski Affidavit, [29]-[31]. Ms Jonceski disputed Mr Piwkowski’s recollection of the phone conversation and produced a file note of the site inspection, including the relevant conversation with Mr Piwkowski.[44] On 14 September 2017, Ms Jonceski sent an email to Mr Piwkowski regarding the site inspection.[45] A letter was attached to this email that was not produced to the Court, which contained an expression of concern that representatives of the Second Respondent obstructed the site inspection,[46] a claim denied by Mr Piwkowski in his subsequent emails to Ms Jonceski.[47] [44] Affidavit of Vera Jonceski, affirmed and filed 21 June 2021, [9]-[13], Annexure “VJ-03”. [45] Affidavit of Anna Arnold, affirmed and filed 24 May 2021 (Arnold Affidavit), [6]. [46] Arnold Affidavit, Annexure AA-2. [47] Arnold Affidavit, Annexure AA-2.