Fair Work Ombudsman v Statewide Security (WA) Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Statewide Security (WA) Pty Ltd [2022] FedCFamC2G 194

File number: PEG 86 of 2021
Judgment of: JUDGE LADHAMS
Date of judgment: 22 March 2022
Catchwords: INDUSTRIAL LAW – penalty hearing – penalty to be imposed for breaches of ss 712(3) and 716(5) of Fair Work Act 2009  
Legislation:

Crimes Act 1914 (Cth) s 4AA

Fair Work Act 2009 (Cth) ss 12, 539, 546, 550, 557, 712, 716, 717

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3

Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46

Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128

Fair Work Ombudsman v Deborah Ruth Souris [2016] FCCA 345

Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown (2017) 275 IR 148; [2017] FCA 1301

Fair Work Ombudsman v Soma Kitchens Pty Ltd (No 2) [2020] FCCA 2583

Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080

Markarian v R (2005) 228 CLR 357; [2005] HCA 25

Morning Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70

Division: Division 2 General Federal Law
Number of paragraphs: 73
Date of hearing: 28 February 2022
Place: Perth
Counsel for the Applicant: Ms Emma Luck
Solicitor for the Applicant: Australian Government Solicitor
Respondents: No appearance by or for the Respondents

ORDERS

PEG 86 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

STATEWIDE SECURITY (WA) PTY LTD

First Respondent

RICHARD MICHAEL CLAYTON

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

22 MARCH 2022

THE COURT ORDERS THAT:

1.Pursuant to s 546(1) of the Fair Work Act 2009 (Cth) (Fair Work Act):

(a)the first respondent pay a pecuniary penalty of $61,500 for its contraventions of ss 712(3) and 716(5) of the Fair Work Act as declared at A and B of the Order made on 11 August 2021; and

(b)the second respondent pay a pecuniary penalty of $12,500 for his involvement in the contraventions of the first respondent of ss 712(3) and 716(5) of the Fair Work Act as declared at C, D, E and F of the Order made on 11 August 2021.

2.Pursuant to s 546(3)(a) of the Fair Work Act, the pecuniary penalties ordered to be paid by the respondents in order 1 above be paid to the Commonwealth of Australia within 28 days of this Order.

3.The applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are 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…

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Details
Case
[2022] FedCFamC2G 194
Decision Date

CaseChat Overview and Summary

In the matter of Fair Work Ombudsman v Statewide Security (WA) Pty Ltd, the respondents were found to have contravened the Fair Work Act and the Security Services Industry Award 2010, leading to a penalty hearing before the court on 28 February 2022. The respondents, Statewide Security (WA) Pty Ltd and its director and secretary, were accused of multiple breaches of employment laws concerning the underpayment of employees Ms Mertens, Mr Jones, and Mr Vuong. The Fair Work Ombudsman brought the case against the respondents, asserting that the company had failed to pay employees their minimum rates, overtime rates, penalty rates, and leave entitlements as required by the Award and the Fair Work Act.

The court was tasked with determining the appropriate penalty for the respondents' breaches of sections 712(3) and 716(5) of the Fair Work Act, as declared by Judge Kendall in an earlier order. The court had to consider the separate contraventions, whether these contraventions should be dealt with individually or aggregated, and the appropriate penalty for each contravention. The court also had to consider the overall penalties and ensure they were appropriate and proportionate to the conduct of the respondents.

The court found that the respondents' actions constituted serious breaches of workplace laws, which were deliberate and involved multiple contraventions over an extended period. The court applied the principles outlined in the High Court's decision in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 and considered the totality of the respondents' conduct. The court concluded that an order for the respondents to pay a pecuniary penalty was appropriate, ensuring compliance and deterrence as intended by the Fair Work Act.

Accordingly, the court ordered the first respondent to pay a pecuniary penalty of $61,500 and the second respondent to pay a penalty of $12,500. The penalties were to be paid to the Commonwealth within 28 days of the order. The applicant was granted liberty to apply for enforcement if the penalties were not paid.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The matter was listed before me for a hearing in relation to penalty on 28 February 2022. These reasons address the penalty to be imposed on the respondents by reasons of the contraventions to the Fair Work Act, the subject of the declarations of Judge Kendall’s Order of 11 August 2021. BACKGROUND AND PROCEDURAL HISTORYBackground facts leading to the commencement of this proceeding The first respondent is a registered Australian proprietary company that operates a security business and provides security guard services to various companies and facilities. The second respondent is the sole director and secretary of the first respondent. In or around August 2019 a Fair Work Inspector (inspector) commenced an investigation into the first respondent’s compliance with Commonwealth workplace laws. Notice to Produce On 31 January 2020 the inspector issued to the first respondent a written notice to produce records or documents pursuant to s 712 of the Fair Work Act (notice to produce). The notice to produce required the first respondent to produce specified documents relating to the employment of two former employees, Ms Mertens and Mr Jones, by 4.00pm on 19 February 2020. On 1 February 2020 the second respondent and Mr Addyman, the operations manager of the first respondent, sent emails to the inspector indicting that the second respondent was overseas and requesting further time to respond to the notice to produce. On 4 February 2020 the inspector indicated that he could not extend the production date indicated in the notice to produce. On 26 February 2020 the second respondent provided to the inspector payslips relating to Ms Mertens and Mr Jones. On 13 March 2020 the inspector sent a letter to the first respondent, a copy of which was provided to the second respondent by email, titled ‘Failure to Comply with Notice to Produce Records or Documents’. The letter advised that the first respondent had failed to produce the records or documents required by the notice by the production date. Between 16 March 2020 and 22 March 2020 the second respondent and Mr Addyman provided further documents and information to the inspector. These documents and information comprised some, but not all, of the documents specified in the notice to produce. Compliance notices The Security Services Industry Award 2010 (Award) covered and applied to the first respondent in respect of its employment of Ms Mertens, Mr Jones and Mr Vuong. As a result of the investigation, the inspector formed a reasonable belief that the first respondent had contravened the Award and the Fair Work Act:(a)during the period from 18 November 2018 to 7 September 2019, by failing to pay Ms Mertens minimum rates, overtime rates, penalty rates for work performed on weekends, public holidays and late nights as well as payment of accrued but untaken annual leave on termination of employment;(b)during the period from 22 August 2018 to 5 November 2019, by failing to pay Mr Jones casual loading, overtime rates and penalty rates for work performed on weekends, public holidays and late nights; and(c)during the period from 1 May 2018 to 2 January 2019, by failing to pay Mr Vuong minimum rates, overtime rates, payment for absence on a public holiday and payment for accrued but untaken leave on termination of employment.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Those penalties shall be payable to the Commonwealth. CONCLUSION For the reasons given, I make the following orders:1. Pursuant to s 546(1) of the Fair Work Act 2009 (Cth) (Fair Work Act):(a)the first respondent pay a pecuniary penalty of $61,500 for its contraventions of ss 712(3) and 716(5) of the Fair Work Act as declared at A and B of the Order made on 11 August 2021; and(b)the second respondent pay a pecuniary penalty of $12,500 for his involvement in the contraventions of the first respondent of ss 712(3) and 716(5) of the Fair Work Act as declared at C, D, E and F of the Order made on 11 August 2021. 2.Pursuant to s 546(3)(a) of the Fair Work Act, the pecuniary penalties ordered to be paid by the respondents in order 1 above be paid to the Commonwealth of Australia within 28 days of this Order. 3.The applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.

Ratio Decidendi

Legal Principle Established

I am satisfied that the respondents were properly notified of the Order made by Judge Kendall and the hearing listed on 28 February 2022 and that they were served a copy of the applicant’s evidence and submissions. I considered that it was appropriate to proceed with the hearing on penalty in the absence of the respondents. CONSIDERATION Section 546(1) of the Fair Work Act gives the Court a discretion to order a person to pay a pecuniary penalty if it is satisfied that person has contravened a civil remedy provision. Sections 712(3) and 716(5) of the Fair Work Act are civil remedy provisions. The Court has already declared, in the Order made by Judge Kendall on 11 August 2021, that the first respondent contravened ss 712(3) and 716(5) of the Fair Work Act and that the second respondent was involved in that contravention. I am satisfied that an order for the respondents to pay a pecuniary penalty is appropriate. The purpose of a civil pecuniary penalty was explained by the plurality (French CJ, Kiefel, Bell Gordon and Nettle JJ) in the High Court’s decision in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46, where their Honours said at [55] (footnotes omitted):No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. … The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act. The greater the penalty that is imposed on the contravener, the more likely the contravener will be deterred from further contravention of the Fair Work Act and will seek to avoid the risk of subjection to further penalties: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 at [116]. Approach for imposing civil penalties Justice Bromwich in the Federal Court decision of Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown (2017) 275 IR 148; [2017] FCA 1301 (NSH North) outlined the approach that should be taken when determining the appropriate penalty. His Honour outlined the following steps at [36]:(1) Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.(2) Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the FW Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.(3) Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.(4) Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.(5) Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (CFMEU Civil Penalties Case) at [64]) and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].Identification of contraventions