Fair Work Ombudsman v Sullivan - [2024] FedCFamC2G 1258

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fair Work Ombudsman v Sullivan

Details

AGLC: Fair Work Ombudsman v Sullivan [2024] FedCFamC2G 1258
Case: [2024] FedCFamC2G 1258
Decision Date: 22 November 2024

CaseChat Overview and Summary

The matter of Fair Work Ombudsman v Sullivan concerned an application for default judgment on causes of action that alleged contraventions of specific sections of the Fair Work Act 2009. The respondent, Sullivan, was accused of breaching section 716(5) and section 536(1) of the Act, which pertain to the provision of information and record-keeping obligations. The Federal Circuit Court was tasked with determining whether the default judgment should be granted and assessing the appropriate penalties.

The primary legal issues the court needed to address were whether the respondent's failure to respond to the proceedings warranted a default judgment and, if so, the extent of the penalties to be imposed for the alleged contraventions. The court had to consider whether the respondent's non-appearance and non-response were sufficient grounds for the grant of default judgment, as well as the nature and severity of the contraventions. The court also had to ensure that the penalties were commensurate with the seriousness of the breaches.

The court found that the respondent's failure to respond to the proceedings justified the granting of a default judgment. It concluded that the evidence provided by the applicant was sufficient to substantiate the allegations of contravention. The court assessed the contraventions as serious due to the nature of the information that was not provided and the failure to maintain proper records. Consequently, the court ordered that Sullivan comply with the compliance notice issued under section 716(2) of the Act and imposed pecuniary penalties for the contraventions of sections 716(5) and 536(1). The court considered the penalties to be necessary to ensure compliance with the Act and to deter future breaches.

The final orders of the court included an injunction requiring Sullivan to comply with the compliance notice, a declaration that the contraventions had occurred, and the imposition of specific pecuniary penalties. The court directed that the penalties be calculated based on the seriousness of the breaches and the financial benefit gained by Sullivan from the contraventions.

Orders