Fair Work Ombudsman v Tate

Case [2024] FedCFamC2G 1213

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Tate [2024] FedCFamC2G 1213  

File number(s): SYG 573 of 2024
Judgment of: JUDGE MANOUSARIDIS
Date of judgment: 15 November 2024
Catchwords: INDUSTRIAL LAW – Assessment of a pecuniary penalty for contravention of s 716(5) of the Fair Work Act 2009 (Cth).
Legislation:

 Bankruptcy Act 1966 (Cth), s 58(3)

Crimes Act 1914 (Cth), s 4AA

Fair Work Act 2009 (Cth), ss 12, 14, 30N(1), 90(2), 539(1), (2), 546(1),(2), 716(1),(2),(3),(5)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 6.14(1),(3)

Social, Community, Home Care and Disability Services Industry Award 2010, cl 17.2, cl 17.3, cl 25.7(d), cl 28.1(a)(i),(iii), cl 29.3(a),(b),(c), cl 34.2(a)

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 Tate trading as Keating Real Change Disability Services [2023] FedCFamC2G 629

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

Kiddle v Nguyen [2021] FedCFamC2G 53

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7

Division: Fair Work
Number of paragraphs: 30
Date of hearing: 6 September, 8 November 2024 
Place: Sydney
Solicitor for the Applicant: Ms O Candiloro
Solicitor for the Respondent: No appearance by, or on behalf of, the Respondent

ORDERS

SYG 573 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FAIR WORK OMBUDSMAN

Applicant
AND:

KRISTY LEANNE TATE

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

15 NOVEMBER 2024

THE COURT ORDERS THAT:

1.Pursuant to s 546(1) of the Fair Work Act 2009 (Cth) (FW Act) the respondent pay a pecuniary penalty in the sum of $7,012.50 for her contravention of s 716(5) of the FW Act as declared in the orders made on 6 September 2024.

2.The respondent pay the pecuniary penalty referred to in order 1 to the Commonwealth within 28 days after the day on which these orders are pronounced.

3.The applicant has liberty to apply on seven days’ notice in the event 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 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

  1. The applicant, the Fair Work Ombudsman (FWO), applies under s 546(1) of the Fair Work Act 2009 (Cth) (FW…

Continue reading Fair Work Ombudsman v Tate

Sign in free to access the full text

Details
AGLC
Fair Work Ombudsman v Tate [2024] FedCFamC2G 1213
Case
[2024] FedCFamC2G 1213
Decision Date

CaseChat Overview and Summary

In the case of Fair Work Ombudsman v Tate, the respondent, Ms Tate, operated an aged and disability care business and was found to have contravened several provisions of the Fair Work Act 2009 (Cth). The Fair Work Ombudsman brought this case against Ms Tate, seeking a declaration of contravention and the imposition of pecuniary penalties. The case was heard by the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether Ms Tate had contravened the Fair Work Act by failing to pay her employees the applicable full-time minimum wage, overtime entitlements, and other allowances during a specified period. The court also had to determine the appropriate pecuniary penalty to impose on Ms Tate for these contraventions.

The court found that Ms Tate had indeed contravened the Fair Work Act by failing to pay her employees the required wages and entitlements. The court considered the seriousness of the contraventions, the impact on the employees, and the need to deter future non-compliance. Given the findings, the court imposed a pecuniary penalty on Ms Tate.

The final orders of the court included a declaration that Ms Tate had contravened specific provisions of the Fair Work Act and the imposition of a pecuniary penalty. The exact amount of the penalty was not specified in the excerpt provided, but the court's reasoning indicated a detailed consideration of the factors relevant to the penalty assessment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the hearing of 8 November Ms Candiloro informed me that the FWO understood that Ms Tate had become a bankrupt on her own petition. Ms Candiloro was not, however, in a position to provide any documentary evidence that Ms Tate had become a bankrupt. That Ms Tate may have become bankrupt, however, would not prevent the Court from determining whether an order under s 546(1) of the FW Act should be made. Subsection 58(3) of the Bankruptcy Act 1966 (Cth) does not apply to a claim for the payment of pecuniary penalty because such a claim is not a remedy “in respect of a provable debt”.[2] [2] Kiddle v Nguyen [2021] FedCFamC2G 53FACTS I made the declaration on 6 September 2024 on the basis of the allegations made in the statement of claim which, given the declaration I made, are taken to have been admitted by Ms Tate. Those allegations are as follows. Ms Tate Ms Tate is a sole trader, and operates an aged and disability care business called “Kreating Real Change Disability Services” in NSW. Under s 14 of the FW Act (as extended by s 30N(1)), Ms Tate is considered a “national system employer”.[3][3] Statement of Claim, 4.4.2024, [3(a)-(d)]Investigation In around October 2022 Fair Work Inspector Ryan Keyhoe (FWI Keyhoe) commenced an investigation into Ms Tate concerning her employment of Ms Catarina Swartz, and Mr Charles Swartz (collectively Employees).[4] [4] Statement of Claim, 4.4.2024, [4] Based on the information obtained during the investigation, FWI Keyhoe formed the following beliefs:[5][5] Statement of Claim, 4.4.2024, [5(a)-(e)] (a)during the period 8 June 2020 to 26 September 2022 Ms Tate employed Ms Swartz on a full-time basis;(b)during the period 27 June 2022 to 26 September 2022 Ms Tate employed Mr Swartz on a full-time basis;(c)the Social, Community, Home Care and Disability Services Industry Award 2010 (Award), a modern award under the FW Act, covered and applied to Ms Tate’s employment of the Employees;(d)from 19 September 2022 to 25 September 2022 (Contravention Period), Ms Swartz was classified under the Award as a “Home Care Employee, Level 2, pay point 2”, and Mr Swartz was classified as a “Home Care Employee, Level 3, pay point 1”.(e)Ms Tate failed to pay:(i)the Employees the applicable full-time minimum wage for ordinary hours worked during the Contravention Period, contrary to cl 17.2 and cl 17.3 of the Award;(ii)the Employees the applicable overtime entitlement for the first 2 hours of authorised overtime worked on Monday to Saturday during the Contravention Period, contrary to cl 28.1(a)(i) of the Award;(iii)the Employees the applicable overtime entitlement for hours worked after the first 2 hours of overtime worked on Monday to Saturday during the Contravention Period, contrary to cl 28.1(a)(i) of the Award;(iv)the Employees the applicable overtime entitlement for authorised hours worked on a Sunday during the Contravention Period, contrary to cl 28.1(a)(iii) of the Award;(v)the Employees their accrued but untaken annual leave (including annual leave loading) payable when the Employees’ employment ended, contrary to s 90(2) of the FW Act;(vi)Ms Swartz the applicable afternoon shift loading for the whole of each afternoon shift during the Contravention Period contrary to cl 29.3(a) of the Award;(vii)Ms Swartz the applicable public holiday rate for hours worked on the public holiday on 22 September 2022, contrary to cl 34.2(a) of the Award;(viii)Mr Swartz the applicable night shift loading for the whole of each night shift during the Contravention Period, contrary to cl 29.3(b) of the Award; (ix)Mr Swartz the applicable public holiday shift loading for hours worked on the public holiday on 22 September 2022, contrary to cl 29.3(c) of the Award;(x)Mr Swartz the applicable sleepover allowance for each night he slept over during the Contravention Period, contrary to cl 25.7(d) of the Award.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.