Fair Work Ombudsman v Sullivan
[2024] FedCFamC2G 1258
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Sullivan [2024] FedCFamC2G 1258
File number(s): SYG 1620 of 2023 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 22 November 2024 Catchwords: INDUSTRIAL LAW – Practice and procedure – application for default judgment on causes of action alleging contraventions of s 716(5) and s 536(1) of the Fair Work Act 2009 (Cth) (FW Act) – default judgment granted – orders made having the effect of requiring the respondent to comply with a compliance notice that had been issued pursuant to s 716(2) of the FW Act – assessment of pecuniary penalties for the respondent’s contraventions of s 716(5) and s 536(1) of the FW Act. Legislation: Crimes Act 1914 (Cth) s 4AA
Fair Work Act 2009 (Cth) ss 12, 30N(1), 536(1), 539(2), 545(1), 546(1), 547(2), 716(5)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.06(2), 13.04(2), 13.05(2)(c), 13.06(2)
Federal Court Rules 1979 (Cth) O 35A r 3(2)
Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Bevis v VA Holdings Pty Ltd trading as Granton Homes & Ors [2020] FCCA 2082
Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492
Fair Work Ombudsman v VS Investment Group Pty Ltd [2013] FCCA 208
Kelly v Fitzpatrick [2007] FCA 1080
Macquarie Bank Limited v Seagle [2005] FCA 1239, at [24] (Conti J); Macquarie Bank Limited v Seagle [2008] FCA 1417
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Phonographic Performance Ltd v Maitra (1998) 41 IPR 225
Rathner, in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626
Division: Fair Work Number of paragraphs: 35 Date of hearing: 16 April 2024 Place: Sydney Solicitor for the Applicant: Mr A Fiorenza for the applicant The Respondent: Respondent in person, by video ORDERS
SYG 1620 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: DANIEL PATRICK SULLIVAN
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT DECLARES THAT:
1.The respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice regarding Mr Kye Symes given to the respondent by Fair Work Inspector Vanessa Camilleri on 19 July 2022 pursuant to s 716(2) of the FW Act (Compliance Notice).
2.The respondent contravened s 536(1) of the FW Act from 9 April 2020 to 10 July 2021 (Employment Period) by failing to provide a payslip to Mr Symes within one day of each day during the Employment Period on which the respondent paid Mr Symes an amount in relation to the performance of work.
THE COURT ORDERS THAT:
3.Pursuant to s 545(1) of the FW Act within 28 days after the date of these orders, the respondent take the steps the Compliance Notice required him to take by:
(a)calculating and paying the outstanding entitlements to Mr Symes in accordance with the Compliance Notice;
(b)calculating and paying to Mr Symes’ nominated superannuation fund any additional superannuation contributions required to be paid on the outstanding entitlements as calculated pursuant to order 3(a); and
(c)preparing and producing to the applicant information that the respondent has complied with orders 3(a) and 3(b).
4.Pursuant to s 547(2) of the FW Act, the respondent pay interest to Mr Symes at the rate of 6% on the amounts paid in accordance with order 3(a) above within 28 days after the date of these orders.
5.Pursuant to s 546(1) of the FW Act the respondent:
(a)pay a pecuniary penalty in the sum of $4,660 for his contravention of s 716(5) of the FW Act referred to in declaration 1 of these orders; and
(b)pay a pecuniary penalty in the sum of $7,992 for his contravention of s 536(1) of the FW Act referred to in declaration 2 of these orders.
6.The respondent pay the pecuniary penalties referred to in order 5 to the Commonwealth within 28 days after date of these orders.
THE COURT NOTES THAT:
7.These declarations and orders are made pursuant to r 13.05(2)(c) of the Federal Circuit and Family Court of Australia Rules (Division 2) (General Federal Law) Rules 2021 (Cth).
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
INTRODUCTION
On 16 October 2023 the applicant (FWO) filed an application and a statement of claim in which she claims that the respondent, Mr Sullivan, contravened s 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice given to him under s 716(2) of the FW Act on 19 July 2022 (Compliance Notice).
The matter came before me on a first court date on 7 November 2023. Ms Mak appeared for the FWO and Mr Sullivan appeared for himself. Both appeared by telephone. I ordered that Mr Sullivan file a defence to the statement of claim by 12 December 2023. I also ordered that the matter be listed for a directions hearing at 9.30 am on 6 February 2024.
Mr Sullivan did not file a defence; and he did not appear at the directions hearing on 6 February 2024. On that day I ordered that the matter be listed before me at 10.15 am on 8 March 2024 to hear an application the FWO proposed to make for default judgment and, if default judgment is granted, to hear an application for an order under s 546(1) of the FW Act that Mr Sullivan pay pecuniary penalties for Mr Sullivan’s alleged contravention of s 716(5) and 536(1) of the FW Act. I also ordered that by 23 February 2024 the FWO file an application in a proceeding claiming such orders, together with the evidence and submissions on which the FWO intended to rely, and that by 8 March 2024 Mr Sullivan file and serve evidence and submissions on which he intended to rely.
The FWO filed an application in a proceeding, together with affidavits and written submissions. Mr Sullivan did not file any affidavit or submissions; but he did appear at the hearing at 10.15 am on 16 April 2024. At the hearing the FWO, who appeared by her lawyer, Mr Fiorenza, applied for default judgment and, assuming default judgment were granted, an order that Mr Sullivan pay pecuniary penalties for his contraventions of s 716(5) and 536(1) of the FW Act. Mr Fiorenza relied on a number of affidavits, and also on written submissions. Mr Sullivan informed me that he did not wish to rely on any material, but he made a submission to which I will refer later.
In these reasons for judgment I consider whether FWO should be granted default judgment and, if so, what pecuniary penalties I should order Mr Sullivan pay. I begin with the allegations made in the statement of claim.
THE STATEMENT OF CLAIM
The FWO makes the following allegations in the statement of claim:
(a)At all relevant times Mr Sullivan was a sole trader operating a floor and wall tiling business in the State of New South Wales (Business) from a particular address (Business Addresses). Mr Sullivan was therefore a “national system employer” within the meaning of s 14 of the FW Act, as extended by s 30N(1) of the FW Act and, therefore, has been covered by the FW Act in respect of his employee(s).
(b)In or around December 2021 the FWO commenced an investigation into Mr Sullivan’s employment of Mr Symes (Investigation). On 12 July 2022 Fair Work Inspector Vanessa Camilleri (FWI Camilleri) had a telephone conversation with Mr Sullivan in which Mr Sullivan provided FWI Camilleri with his email address (Sullivan Email Address); stated he no longer resided at the Business Address; and that he resided at another address (Residential Address).
(c)As a result of the Investigation, FWI Camilleri formed the following beliefs:
(i)Mr Symes was employed by Mr Sullivan as a casual employee from 9 April 2020 to 10 July 2021 (Employment Period).
(ii)The Building and Construction General On-site Award 2010 (2010 Award) and the Building and Construction General On-site Award 2020 (2020 Award) (together the Awards) covered and applied to Mr Sullivan in respect of Mr Symes’ employment during the Employment Period.
(iii)Under the Awards, Mr Symes was entitled to be classified as a:
(A)Construction Worker Level 1 (CW 1) (level a) from 9 April 2020 to 8 July 2020;
(B)CW 1 (level b) from 9 July 2020 to 8 April 2021; and
(C)CW 1 (level c) from 9 April 2021 to 10 July 2021.
(iv)Mr Symes was paid a flat rate of $20.00 per hour for all hours he worked during the Employment Period.
(v)During the Employment Period, Mr Symes performed work including overtime hours and on at least one Sunday.
(d)Because of the matters in (c), FWI Camilleri formed a reasonable belief within the meaning of s 716(1)(b) of the FW Act that, during the Employment Period, Mr Sullivan had contravened the following provisions of the Awards (the Contraventions):
(i)cl 19.1 of the Awards, by failing to pay Mr Symes the applicable minimum hourly rate;
(ii)cl 14.5 of the 2010 Award and clause 12.5 of the 2020 Award, by failing to pay Mr Symes the applicable casual loading;
(iii)cl 29.4(a) and 12.6(a) of the 2020 Award, by failing to pay Mr Symes the applicable casual weekday overtime rate (first 2 hours and after 2 hours); and
(iv)cl 30.1(d) and 12.6(b) of the 2020 Award, by failing to pay Mr Symes the casual Sunday penalty rate.
(e)On 19 July 2022 FWI Camilleri gave the Compliance Notice to Mr Sullivan pursuant to s 716(2) of the FW Act by email it to the Sullivan Email; and by prepaid express post addressed the Business Address and the Residential Address.
(f)Pursuant to section 716(2) of the FW Act, the Compliance Notice required Mr Sullivan to:
(i)take the following action to remedy the direct effects of the Contraventions by 30 August 2022 (Specified Action):
(A)calculate and pay the outstanding entitlements owed to Mr Symes in respect of each of the Contraventions;
(B)calculate and pay to Mr Symes' chosen superannuation fund any additional superannuation contributions required to be paid by cl 28.2 of the 2020 Award in respect of the amounts referred to in paragraph (A); and
(C)make a record of the information and amounts referred to in paragraphs (A) and (B) (Underpayment Rectification Information); and
(ii)produce reasonable evidence to the FWO of compliance with the Compliance Notice by 6 September 2022 by producing the Underpayment Rectification Information; and proof that full payment was made to Mr Symes as required by the Compliance Notice.
(g)The Compliance Notice met the requirements of s 716(3) of the FW Act.
(h)The Respondent failed to:
(i)take the Specified Action set out in the Compliance Notice by 30 August 2022, or at all; and
(ii)produce evidence of compliance with the Compliance Notice by 6 September 2022, or at all.
(i)Pursuant to s 536(1) of the FW Act, at all material times Mr Sullivan was required to give Mr Symes a pay slip within one working day of paying an amount to him in relation to his performance of work.
(j)During the Employment Period, Mr Sullivan failed to give pay slips to Mr Symes within one working day of paying an amount to him in relation to his performance of work, or at all.
DEFAULT JUDGMENT
Power and principles
Subrule 13.05(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) applies to a respondent who “is in default”. Under r 13.04(2) of the GFL Rules a respondent is in default if the respondent has not satisfied the applicant’s claims, and the respondent has failed to do one or more of the things identified in r 13.04(2)(b) of the GFL Rules. The things identified in r 13.04(2)(b) that are relevant to the application before me are the failure to file a response or defence before the time for doing so has expired, the failure to comply with an order of the Court in the proceeding, and the failure to defend the proceeding with due diligence. Also relevant is r 13.06(2) of the GFL Rules, which provides that the Court may make an order of the kind mentioned in r 13.05(1), (2) or (4) if a party to a proceeding is absent from a hearing.
When a respondent is in default, or when a respondent is absent from a hearing, the Court may make one of the orders set out in r 13.05(2) of the GFL Rules. Relevant to the application before me is r 13.05(2)(c) which provides that the Court may:
if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings – give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant . . .
Rules 13.04 and 13.05 of the GFL Rules were adapted from, and are substantially similar to, the rules contained in O 35A of the now repealed Federal Court Rules 1979 (Cth);[1] and r 13.05(2)(c) of the GFL Rules is almost identical to O 35A r 3(2)(c). There are a number of principles that have been formulated in relation to O 35A r 3(2) which apply to r 13.05 of the GFL Rules. These include the following:
(a)First, r 13.05(2)(c) of the GFL Rules “does not require proof of the claim by evidence, but only requires that — on the face of the statement of claim — there is a claim for the relief sought”.[2]
(b)Second, before the Court may make an order under r 13.05(2)(c) of the GFL Rules it must be satisfied that the document, which the applicant has filed with the application, is in fact a “statement of claim”. A statement of claim is a pleading, which means it must comply with the rules of pleading.[3]
(c)Third, it follows from (b) that the statement of claim must plead at least one reasonable cause of action that supports the granting of the relief the applicant seeks in the application. More particularly, “each element of the relevant civil wrong” of which the applicant complains must be “properly and discretely pleaded in the statement of claim”.[4]
(d)Fourth, although r 13.05(2)(c) of the GFL Rules does not require proof of the claim by evidence, it is permissible for the applicant to adduce evidence that is relevant to the relief sought.[5]
(e)Finally, the Court retains a discretion not to make an order under r 13.05(2)(c) of the GFL Rules, even if the preconditions.
[1] The equivalent current rule is r 5.23(2)(c) of the Federal Court Rules 2011 (Cth).
[2] Rathner, in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626, at [9] (Gordon J)
[3] Under r 1.06(2) of the GFL Rules, the rules of the Federal Court Rules 2011 (Cth) (FC Rules) identified in Schedule 1 to the GFL Rules apply, with necessary changes, to general federal law proceedings. The FC Rules there identified include the rules of pleading.
[4] Macquarie Bank Limited v Seagle [2005] FCA 1239, at [24] (Conti J); Macquarie Bank Limited v Seagle [2008] FCA 1417, at [20] (Jagot J)
[5] Phonographic Performance Ltd v Maitra (1998) 41 IPR 225, at page 230
Is Mr Sullivan in default?
There is no question that Mr Sullivan is in default. He has not filed a defence; and, as revealed in the affidavit of Ms Hannaford, a lawyer employed at the office of the FWO, Mr Sullivan has received correspondence from the FWO about this proceeding, but has chosen not to take any meaningful role in it, other than to appear at the first court date, and at the hearing on 16 April 2024.
Consequences of Mr Sullivan being in default
The consequence of Mr Sullivan being in default is that the allegations of fact the FWO makes in the statement of claim are taken to be admitted, and the FWO is entitled to such relief as would be warranted by those facts.
At the hearing of 16 April 2024 Mr Sullivan said he had not been served with the Compliance Notice. As I informed Mr Sullivan, he has not raised that as an issue in any defence because he has not filed a defence. His being in default means that the allegation in the statement of claim that he was given the Compliance Notice on 19 July 2024 is taken to have been admitted. It would be appropriate, however, if I refer to the evidence that is relevant to whether the FWO did in fact give the Compliance Notice to Mr Sullivan.
According to the affidavit made by FWI Camilleri (who, I infer, is now known as Vanessa Murray):
Between 5 August 2022 and 30 August 2022, on my request, Ms Qutami attempted to contact the Respondent on six occasions to assist him to comply with the Compliance Notice by email to [email protected] (Respondent’s Email Address), and by text message and telephone on 0498 286 570. A bundle of the email correspondence, text messages and a file note of an attempted telephone call is annexed and marked “VM-4”.
On 8 September 2022, Ms Qutami sent a letter titled ‘Failure to Comply with Compliance Notice’ to the Respondent’s Email Address to provide him with a final opportunity to comply. A copy of the letter and covering email are annexed and marked “VM-5”.
Annexure “VM-4” to FWI Camilleri’ affidavit is the following email Ms M Qutami sent to Mr Sullivan on 5 August 2022:[6]
[6] Affidavit V Murray 12.03.2024, [9]; annexure VM-4
Dear Daniel
Fair Work Inspector Vanessa Camilleri (the Inspector) has asked me to follow up with you in regards to the attached Compliance Notice served to DANIEL PATRICK SULLIVAN (Employer).
Payment of monies owing to the employee named on the Compliance Notice, Riley Hall (the Employee), is due Kye Symes (Employee). You may provide your calculations to me via response email and I will consult with the Inspector to ensure they rectify the Compliance Notice prior to you making payment.
I have attached a copy of the Compliance Notice and Covering Letter previously issued to you.
Finally, please confirm via return email, if or whether the business has received a copy of the attached Compliance
Notice and Cover Letter. The documents were sent to:
Daniel Patrick Sullivan
. . . Road,
. . .
[That is, the Residential Address]
Please do not hesitate to call or email me back on my below details if you require any further assistance or clarifications.
In the event I am unable to take your call, please leave a voicemail with your best contact number and I will return your call.
There are a number of actions the Compliance Notice requires of the business to and we wish to help you avoid any risk of not meeting all of these requirements by their due date.
Thank you in advance for your cooperation.
Regards
I am prepared to find (if it were necessary to do so) that the Compliance Notice was posted to the Residential Address on the date it was issued, namely, 19 July 2022 and, therefore, was given to Mr Sullivan on 19 July 2022. Further, the evidence reveals that the FWO made a number of attempts after 5 August 2022 to assist Mr Sullivan to comply with the Compliance Requirements.[7]
[7] Affidavit C D Hannaford 27.02.204
The FWO submits that the (admitted) allegations made in the statement of claim support the making of a declaration and orders set out in Annexure A to the FWO’s written submissions. I accept that submission. I accordingly propose to make declarations to the effect the FWO claims, namely, that Mr Sullivan:
(a)contravened s 716(5) of the FW Act by failing to comply with the requirements of the Compliance Notice; and
(b)contravened s 536(1) of the FW Act by failing to provide to Mr Symes a payslip within one day of paying Mr Symes an amount in relation to the performance of work, or at all.
I will also make orders which have the effect of compelling Mr Sullivan to do that which the Compliance Notice required him to do.
PECUNIARY PENALTIES - POWER AND PRINCIPLES
Subsection 546(1) of the FW Act provides that this Court may, on application, order a person to pay a pecuniary penalty the Court considers is appropriate if the Court is satisfied the person has contravened a “civil remedy provision”.[8] That expression is defined in s 539(1) of the FW Act to include the provisions identified in column 1 of the table to s 539(2) of the FW Act. Subsection 536(1) and s 716(5) are both in column 1 of the table to s 539(2) of the FW Act.
[8] I repeat in this and the following 4 paragraphs much of what I said in Bevis v VA Holdings Pty Ltd trading as Granton Homes & Ors [2020] FCCA 2082, at [33]-[38].
Subsection 546(2) of the FW Act provides that the pecuniary penalty the Court may impose must not, where the person is an individual, be more than “the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)”. The maximum penalty units for a contravention of s 716(5) of the FW Act as at 30 August 2022, being the day by which Mr Sullivan was required to carry out the Specified Action, are 30 penalty units for an individual; and the maximum penalty units for a contravention of s 536(1) of the FW Act during the Employment Period is 60 units. Section 12 of the FW Act provides that “penalty unit” has the meaning given by s 4AA of the Crimes Act 1914 (Cth). During the Employment Period, the penalty unit provided for by s 4AA was $222.[9] Thus, $6,660 is the maximum pecuniary penalty Mr Sullivan may be ordered to pay for his contravention of s 716(5) of the FW Act; and $13,320 is the maximum pecuniary penalty Mr Sullivan may be ordered to pay for his contravention of s 536(1) of the FW Act.
[9] See notice of Indexation of the Penalty Unit Amount issued on 14 May 2022 pursuant to s 4AA(1A) of the Crimes Act 1914 (Cth).
The approach of most judges when assessing pecuniary penalties for a single contravention of a civil remedy provision of the FW Act is to take into account considerations that may include the non-exhaustive considerations Tracey J identified in Kelly v Fitzpatrick,[10] which his Honour adopted from the judgment of Mowbray FM in Mason v Harrington Corporation Pty Ltd. [11] Those considerations are:
[10] Kelly v Fitzpatrick [2007] FCA 1080, at [14]
[11] Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
(a)the nature and extent of the conduct which led to the breaches;
(b)the circumstances in which that conduct took place;
(c)the nature and extent of any loss or damage sustained as a result of the breaches;
(d)whether there had been similar previous conduct by the respondent;
(e)whether the breaches were properly distinct or arose out of the one course of conduct;
(f)the size of the business enterprise involved;
(g)whether or not the breaches were deliberate;
(h)whether senior management was involved in the breaches;
(i)whether the party committing the breach had exhibited contrition;
(j)whether the party committing the breach had taken corrective action;
(k)whether the party committing the breach had cooperated with the enforcement authorities;
(l)the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
(m)the need for specific and general deterrence.
Although these factors have been identified and applied as relevant to the assessment of pecuniary penalties, they do not constitute a “rigid catalogue of matters for attention”.[12]
[12] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8, at [91] (Buchanan J)
Also relevant is the maximum pecuniary penalty for the contravention provided for by the FW Act; and here I refer to the following passage from the judgment of Flick J in The BKH Contractors Case (No 2):[13]
In undertaking the task of assessing and quantifying the penalties to be imposed, the maximum penalty prescribed by the Commonwealth legislature for a specific contravention serves as a “yardstick” against which the assessment of penalties is generally to proceed . . . .
ASSESSMENT OF PENALTY – CONTRAVENTION OF S 716(5)
[13] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563, at [19]
Nature, extent, circumstances, and deliberateness of the contravening conduct
The contravention consisted of Mr Sullivan not complying with the Compliance Notice. That occurred in circumstances where the FWO afforded Mr Sullivan every opportunity to comply with it.[14] I accept the FWO’s submissions that Mr Sullivan’s response to the Compliance Notice manifests a deliberate and, for that reason, serious disregard of his obligations under the FW Act.
[14] Applicant’s Outline of Submissions on Default Judgment and Penalty, [50]
The following passage from the judgment of Judge Emmett in Fair Work Ombudsman v Viper Industries Pty Ltd applies to the nature of Mr Sullivan’s contravention of s 716(5) of the FW Act.[15]
The Respondents’ intentional failure to comply with a mandatory notice issued by the workplace regulator is “conduct ... [which] undermines the utility and effectiveness of a fundamental object” [of] the FW Act. The failure to comply undermines and frustrates the powers conferred on Fair Work Inspectors, which are conferred for the purposes of providing an effective means of enforcing compliance with lawful minimum entitlements. There is a significant cost to the public by reason of the need to bring this matter before the court to enforce compliance.
[15] Fair Work Ombudsman v Viper Industries Pty Ltd [2015] FCCA 492, at [42]
These matters point to assessing penalty at the higher end of the scale.
Nature and extent of loss occasioned by the contravention
The Compliance Notice states that Mr Sullivan employed Mr Symes over the Employment Period, namely, from around December 2021 to 12 July 2022. The evidence suggests, and I find, that during this period Mr Sullivan employed Mr Symes as a casual employee, and he paid Mr Symes a flat hourly rate of $20. The hourly rate under the Award was $28.13.[16] It is not clear on the evidence how many hours Mr Symes worked with Mr Sullivan. Nevertheless, however many hours Mr Symes worked, he was paid only around 71% of the amount he ought to have been. This is significant; and its significance is magnified by Mr Sullivan not having paid the difference to Mr Symes.
[16] Affidavit V Murray 12.03.2024, [6]; annexure VM-3
These matters also point to assessing penalty at the higher end.
Deterrence
I accept the FWO’s submission that the pecuniary penalty in relation to Mr Sullivan’s contravention should include an element for specific deterrence.[17] I am also satisfied that penalty should incorporate an element for general deterrence. I refer to what Judge Jarrett said in Fair Work Ombudsman v VS Investment Group Pty Ltd:[18]
The failure to comply with a notice properly issued by the applicant in the course of its investigations and the discharge of its statutory functions is serious. Recipients of such notices should be left under no misapprehension about their obligations to comply with those notices.
[17] Applicant’s Outline Submissions on Default Judgment and Penalty, [48]
[18] Fair Work Ombudsman v VS Investment Group Pty Ltd [2013] FCCA 208, at [51]
Determination
The FWO submits that a penalty assessed in the range of 60% and 70% of the maximum would be appropriate. I consider 70% of the maximum, namely, $4,660, to be an appropriate penalty.
ASSESSMENT OF PENALTY – CONTRAVENTION OF S 536(1)
The contravention consisted of Mr Sullivan not issuing a payslip to Mr Symes throughout the Employment Period. That is a serious and persistent contravention, and manifests intentional action and a disregard of s 536(1) of the FW Act. These matters point to the penalty being assessed on the higher end of the scale.
I accept the FWO’s submission that Mr Sullivan’s contravention of s 536(1) of the FW Act has impeded the FWO’s and Mr Symes’ abilities to accurately ascertain the amounts Mr Sullivan paid Mr Symes; the days and times for which Mr Sullivan paid Mr Symes; and, therefore, the amounts Mr Sullivan was obliged but failed to pay to Mr Symes. These are matters that also point to the penalty being assessed on the higher end of the scale.
The penalty for Mr Sullivan’s contraventions of s 536(1) of the FW Act should incorporate an element for specific deterrence for the same reasons that the penalty for his contravention of s 716(5) should incorporate an element for specific deterrence. The amount should also be assessed to generally deter employers from not complying, or considering not to comply with the obligation to issue payslips.
The FWO submits that a pecuniary penalty assessed in the range 60% and 70% of the maximum should be applied. I consider 60% of the maximum, namely, $7,992, to be an appropriate penalty.
ADJUSTMENTS?
I am satisfied that no adjustments should be made, either on the basis of the one transaction principle, or the totality principle.
DISPOSITION
I propose to make a declaration to the effect the FWO claims, make orders which have the effect of compelling Mr Sullivan to comply with the requirements of the Compliance Notice; order that Mr Sullivan pay pecuniary penalties of $4,660 and $7,992; and that Mr Sullivan pay the pecuniary penalties to the Commonwealth within 28 days after I pronounce orders.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 22 November 2024
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