Federal Circuit and Family Court of Australia
(DIVISION 2)
Fair Work Ombudsman v Tipene [2022] FedCFamC2G 853
File number(s): SYG 566 of 2022 Judgment of: JUDGE HUMPHREYS Date of judgment: 7 October 2022 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – application for default judgment – penalty imposed. Legislation: Fair Work Act 2009 (Cth) s 716
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.05
Cases cited: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] 165 FCR 560
Canturi v Sita Coaches Pty Ltd [2002] 116 FCR 276
Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] 110 IR 372
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charleston [2017] FCA 1301
Fair Work Ombudsman v NoBrace Centre Pty Limited (in Liquidation) [2019] FCCA 2970
Mason v Harrington Corporation Pty Limited [2007] FMCA 7
Mornington Inn Pty Ltd v Jordan [2008] 168 FCR 383
Seven Network (Operations) Pty Ltd v Communications,
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 7 October 2022 Date of hearing: 7 October 2022 Place: Parramatta Solicitor for the Applicant: Mr Lodge Solicitor for the Respondent: There was no appearance by or on behalf of the Respondent ORDERS
SYG 566 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: WINATA TIPENE
Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
7 OCTOBER 2022
THE COURT ORDERS THAT:
1.Default judgment be entered for the Applicant against the Respondent pursuant to Rule 13.05(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘Rules’) by reason of the Respondent’s default pursuant to Rule 13.04(2) of the Rules by failing to:
(a)file a notice of address for service as required by Rule 6.01 of the Rules;
(b)file a notice of address for service by 3 June 2022 in accordance with Order 1 of the orders of His Honour Judge Humphreys dated 27 May 2022 (‘Orders’);
(c)file a response by 24 June 2022 in accordance with Order 2 of the Orders;
(d)file a defence in accordance with Rule 4.04(3); and
(e)defend the proceedings with due diligence.
2.A declaration is made that the Respondent contravened s 716(5) of the Fair Work Act 2009 (Cth) (‘FW Act’) by failing to comply with the compliance notice dated 21 October 2021 (‘Compliance Notice’).
3.Pursuant to s 545(1) of the FW Act, the Respondent, within 28 days from the date of this order take action to remedy the direct effects of the contravention set out in the Compliance Notice by:
(a)paying $2,152.19 (gross) to Mr Prismall-Webster;
(b)calculating and paying into Mr Prismall-Webster’s nominated superannuation fund the additional superannuation contributions required to be paid on the amount in subparagraph a. above pursuant to clause 20.2 of the Plumbing and Fire Sprinklers Award 2020 (‘Plumbing Award’);
(c)paying $4,514.32 (gross) to Mr Campisi; and
(d)calculating and paying into Mr Campisi’s…
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- Case
- [2022] FedCFamC2G 853
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to decide were the appropriate penalty to impose on Tipene for his contravention of the Act, and whether there were any mitigating factors that should be taken into account. The court considered various factors, including the cost of the contravention, the deterrence of future breaches, the flagrancy and deliberateness of the breach, Tipene's past record of behaviour, and any contrition displayed by Tipene. The maximum penalty that the court could impose on Tipene for the contravention was $6,600.00.
The court found that Tipene had displayed a complete disregard for his obligations under the compliance notice and was in serious and wilful disregard for his responsibilities under the Act, the Fair Work Ombudsman, and the court. The court noted that Tipene had been given an opportunity to rectify the contraventions but had failed to do so nearly 8 months after the time specified in the compliance notice. The court also found that Tipene had not meaningfully engaged in any way with either the Fair Work Ombudsman's investigation or the court processes. The court concluded that Tipene's disregard of the compliance notice and the proceedings in court indicated a seriousness which must be reflected in the penalty. The court further noted that Tipene's unwillingness to engage in any way meant that any reduction in penalty that might have been possible was, effectively, ruled out. The court imposed a penalty of $6,600.00 on Tipene for his contravention of the Act.
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Background to the litigation
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Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
Merkel J in Seven Network (Operations) Pty Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] 110 IR 372 set out some guiding considerations for the Court:matters to be taken into account in determining the appropriate penalty include the cost of the contravention, deterrence, the flagrancy and deliberateness of the breach, the offender’s past record of behaviour and any contrition displayed by the offender.consideration These proceedings involve one contravention of s 716(5) of the Act. The maximum penalty that the Court may impose on a respondent for such a contravention is $6,600.00. In terms of the nature and deliberateness of the contravention, the Court notes the respondent was given an opportunity to rectify the contraventions and has failed to do so nearly 8 months after the time specified in the compliance notice. Further, the respondent has not meaningfully engaged in any way with either the applicant’s investigation or the Court processes. The Court acknowledges the applicant has made extensive efforts to engage with the respondent for the purposes of seeking compliance. Evidence has been given on a belligerent and obdurate attitude by the respondent. The Court is of the view that the respondent has displayed a complete disregard for his obligations under the compliance notice and is in serious and wilful disregard for his responsibilities under the Act, the applicant as the regulator of Commonwealth workplace laws and the Court. In terms of the nature and extension of the loss, the employees have not received correct payment for hours worked and leave entitlements that was due to them, notwithstanding eight months has passed since the compliance notice was issued. Further, the failure to comply with the compliance notices and necessitated the applicant to institute Court proceedings. This is a significantly aggravating factor as the applicant and the Court have been required to spend time at significant cost in public funds in dealing with a civil remedy proceeding that could have been rectified had the compliance notice been complied with. In terms of compliance with minimum standards, the respondent has disregarded the minimum standards in industrial instruments. His disregard of the compliance notice and the proceedings in Court indicate a seriousness which must be reflected in the penalty and, indeed, his unwillingness to engage in any way means that any reduction in penalty that might have been possible is, effectively, ruled out. No evidence has been adduced as to the financial circumstances of the respondent. Whilst it was asserted he was no longer trading due to COVID-19 and/or that he was “broke”, no evidence has been provided of the financial hardship. Rather, the evidence indicates that he was simply not happy with the employees, who are the subject of these proceedings, and this was the justification for failing to pay them. There is also evidence that indicates the respondent continues to trade in the metal roofing industry and has a significant number of employees working for him. Irrespective of this, it is well-established that the size and financial circumstances of an employer do not exculpate breaches of workplace laws and a capacity to pay a penalty will be of less relevance in objective general deterrence.