Fair Work Ombudsman v Tran - [2023] FedCFamC2G 1038

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Tran [2023] FedCFamC2G 1038

File number: LNG 42 of 2021

Judgment of: JUDGE TAGLIERI

Date of judgment: 15 November 2023

Catchwords: INDUSTRIAL LAW – penalty hearing – contraventions of Fair Work Act 2009 (Cth) – where parties agree as to penalty within a specified range – determination of quantum of penalties to be paid to Commonwealth – penalty orders made

Legislation:
Crimes Act 1914 (Cth) s 12

Fair Work Act 2009 (Cth) ss 44, 45, 90(1), 90(2), 116, 125(1), 535(1), 536(1), 536(2), 539(2), 546, 557, 557(1), 718A(1)

Restaurant Industry Award 2010 cls 20.1, 33.1(a), 33.2(a) 33.1(b), 34.1, 35.2(b),

Cases cited:
Australian Building and Construction Commissioner v J Hutchinson Pty Ltd T/A Hutchinson Builders [2019] FCA 667

Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors (2015) 258 CLR 485

Fair Work Ombudsman v Grouped Property Services Pty Ltd (No.2) [2017] FCA 557

Fair Work Ombudsman v NSH North Proprietary Limited trading as New Shanghai Charlestown [2017] FCA 1301

Trade Practices Commission v CSR Ltd [1990] FCA 521

Markarian v R (2005) 228 CLR 357

Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560

Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338

Division: Division 2 General Federal Law

Number of paragraphs: 41

Date of hearing: 20 July and 30 October 2023

Place: Hobart

Counsel for the Applicant: Ms Leoncio

Solicitor for the Applicant: Norton Rose Fulbright

Counsel for the Respondents: Mr Rinaldi

Solicitor for the Respondents: Dobson Mitchell & Allport
ORDERS

LNG 42 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FAIR WORK OMBUDSMAN

Applicant

AND:
XUAN TRAN

First Respondent

QUANG MANH DONG

Second Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

15 NOVEMBER 2023

THE COURT ORDERS THAT:
1.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) (FW Act):
(a)the First Respondent pay pecuniary penalties of $45,532.80 in respect of the contraventions set out in the Orders of 30 May 2023; and
(b)the Second Respondent pay pecuniary penalties of $23,990.40 in respect of the contraventions set out in the Orders of 30 May 2023.

2.Pursuant to section 546(3) of the FW Act, the penalty amounts referred to in Order 1 above be paid to the Consolidated Revenue Fund of the Commonwealth in accordance with the following payment schedule:

Payment No. Date of payment Amount of payment (fraction of penalty amount)

1 1 calendar month after the date of this Order (Order Date) 1/12^th

2 2 calendar months after the Order Date 1/12^th

3 3 calendar months after the Order Date 1/12^th

4 4 calendar months after the Order Date 1/12^th

5 5 calendar months after the Order Date 1/12^th

6 6 calendar months after the Order Date 1/12^th

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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 Tran

Details

AGLC: Fair Work Ombudsman v Tran [2023] FedCFamC2G 1038
Case: [2023] FedCFamC2G 1038
Decision Date: 15 November 2023

CaseChat Overview and Summary

In the matter of Fair Work Ombudsman versus Tran, the Federal Circuit and Family Court of Australia was presented with a dispute concerning contraventions of the Fair Work Act 2009. The case involved two respondents, with the first respondent identified as the manager of the business, who was closely involved in the administrative and payment aspects of the employees. The primary issue before the court was to determine the appropriate penalties to be imposed on the respondents for the contraventions, as well as the quantum of penalties to be paid to the Commonwealth.

The court was tasked with considering the seriousness of the contraventions, the level of involvement and responsibility of the first respondent, and the proposed penalty ranges agreed upon by the parties. The court also needed to balance the principles of specific and general deterrence with other relevant considerations, such as the totality principle and the cooperation of the respondents. Additionally, the court had to decide whether the penalties should be paid to the Commonwealth or an employee, and to address the parties' differing views on the precise form of the order and the timeframe for payment.

The court, after considering the agreed penalty ranges and the various factors in play, determined that the lower end of the proposed range should be imposed, taking into account the specific and general deterrence as well as the other relevant considerations. The court also agreed with the parties' proposed discounts for the respondents' cooperation and the totality principle. As a result, the court ordered the first respondent to pay penalties in the total sum of $45,532.80, and the second respondent to pay penalties in the total sum of $23,990.40. The penalties were to be paid to the Commonwealth, not to an employee, as the facts and circumstances did not warrant such an order. The court also clarified the meaning of paragraph 3 of the minute of order, as it did not appear to serve a purpose.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I accept that the First Respondent was the manager of the business employer and was thereby intimately involved in the contraventions, although initially perhaps unknowingly. Her responsibility, authority, and involvement in managing administration paperwork and payments of employees warrants her conduct being regarded as more serious. CONCLUSION The proposed range of penalty for the 13 grouped contraventions are helpfully summarised in Annexure A to the parties’ joint submissions filed 25 October 2023. The Annexure reflects the maximum penalties available and range of percentage of the worst case or maximum agreed for Tran and Nguyen. I agree that the percentage ranges proposed are open in view of the reasoning expressed above, however, I consider that the lower end of the range ought to be imposed given all the findings I have made and because of the relative balancing of specific and general deterrence discussed in my reasons at [27] and [28] with other relevant considerations. The parties also jointly submitted that a 20 per cent discount for the cooperation of the Respondents was agreed. Further that a discount of 15 per cent should apply when accounting for the totality principle. I agree that these percentage discounts are warranted in view of the findings I have made and my reasons. Accordingly, there will be orders that:(1)The First Respondent pay penalties in the total sum of $45,532.80; and(2)The Second Respondent pay penalties in the total sum of $23,990.40. I accept the joint submissions that the penalties ought to be paid to the Commonwealth. This is not a case where the facts and circumstances warrant making an order that the penalties be paid to an employee.[13] [13] Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338. During the hearing on 30 October 2023, counsel for the parties were somewhat apart in relation to the precise form of order the Court should make, due to an agreement in principle concerning the timeframe for payment of the penalties. After hearing submissions about this, I made some observations which then assisted the parties to reach agreement in full about the terms of the orders. Counsel for the Applicant agreed to provide a revised draft minute of order sought, which I have now asked to be marked as Exhibit 1. The terms of the revised draft minute are acceptable to the Court, subject to clarifying the meaning of paragraph 3 of the minute, as it does not appear to serve a purpose.

Ratio Decidendi

Legal Principle Established

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File number:	LNG 42 of 2021
Judgment of:	JUDGE TAGLIERI
Date of judgment:	15 November 2023
Catchwords:	INDUSTRIAL LAW – penalty hearing – contraventions of Fair Work Act 2009 (Cth) – where parties agree as to penalty within a specified range – determination of quantum of penalties to be paid to Commonwealth – penalty orders made
Legislation:	Crimes Act 1914 (Cth) s 12 Fair Work Act 2009 (Cth) ss 44, 45, 90(1), 90(2), 116, 125(1), 535(1), 536(1), 536(2), 539(2), 546, 557, 557(1), 718A(1) Restaurant Industry Award 2010 cls 20.1, 33.1(a), 33.2(a) 33.1(b), 34.1, 35.2(b),
Cases cited:	Australian Building and Construction Commissioner v J Hutchinson Pty Ltd T/A Hutchinson Builders [2019] FCA 667 Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors (2015) 258 CLR 485 Fair Work Ombudsman v Grouped Property Services Pty Ltd (No.2) [2017] FCA 557 Fair Work Ombudsman v NSH North Proprietary Limited trading as New Shanghai Charlestown [2017] FCA 1301 Trade Practices Commission v CSR Ltd [1990] FCA 521 Markarian v R (2005) 228 CLR 357 Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338
Division:	Division 2 General Federal Law
Number of paragraphs:	41
Date of hearing:	20 July and 30 October 2023
Place:	Hobart
Counsel for the Applicant:	Ms Leoncio
Solicitor for the Applicant:	Norton Rose Fulbright
Counsel for the Respondents:	Mr Rinaldi
Solicitor for the Respondents:	Dobson Mitchell & Allport

LNG 42 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FAIR WORK OMBUDSMAN Applicant
AND:	XUAN TRAN First Respondent QUANG MANH DONG Second Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	15 NOVEMBER 2023

Payment No.	Date of payment	Amount of payment (fraction of penalty amount)
1	1 calendar month after the date of this Order (Order Date)	1/12^th
2	2 calendar months after the Order Date	1/12^th
3	3 calendar months after the Order Date	1/12^th
4	4 calendar months after the Order Date	1/12^th
5	5 calendar months after the Order Date	1/12^th
6	6 calendar months after the Order Date	1/12^th
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