Fair Work Ombudsman v Trucking Services Pty Ltd
[2021] FCCA 94
•25 JANUARY 2021 AMENDED 1 FEBRUARY 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Fair Work Ombudsman v Trucking Services Pty Ltd [2021] FCCA 94
File number(s): BRG 97 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 25 January 2021 Catchwords: INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – orders for compliance.
Legislation: Fair Work Act 2009 (Cth) ss. 14, 539, 545(1), 682, 716(1), 716(5)
Federal Circuit Court Rules 2001 (Cth) rr. 4.03, 4.05, 6.01, 13.03A(2), 13.03B, 13.03B(2)(c), 13.03C(2)
Federal Court Rules 1979 (Cth) order 35A
Federal Court Rules 2011 (Cth) r. 5.23(2)(c)
Cases cited: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433
Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2006] FCA 1427
Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352
Commissioner for Consumer Protection v Unleash Solar Pty Ltd (in liq) (No2) [2016] FCA 1177
Fair Work Ombudsman v Al Hilifi
Luna Park v Bose [2006] FCA 94
Number of paragraphs: 17 Date of last submission/s: 27 July 2020 Date of hearing: By written submission Place: Brisbane Solicitor for the Applicant: Office of the Fair Work Ombudsman The Respondent: Self-represented ORDERS
BRG 97 of 2020 BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: TRUCKING SERVICES PTY LTD
Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
25 JANUARY 2021
AMENDED 1 FEBRUARY 2021THE COURT ORDERS THAT:
1.Default judgment be entered for the Applicant against the Respondent pursuant to rule 13.03B(2)(c) of the Federal Circuit Court Federal Circuit Court Rules 2001 (Cth) by reason of the Respondent's default pursuant to rule 13.03A(2) of the Federal Circuit Court Rules 2001 by its failure to:
(a)file a notice of address for service as required by rule 6.01 of the Rules;
(b)file a response or defence within 28 days of service as required by rules 4.03 and 4.05(3) of the Rules;
(c)file and serve a response and any other documents required by the Rules, including a defence, by no later than 4:00pm on 19 June 2020 in accordance with Order 1 of the orders of the Court dated 5 June 2020; and
(d)defend the proceeding with due diligence.
2.Upon admissions that the respondent is taken to have made by reason of its default, the Court declares that the respondent contravened s.716(5) of the Fair Work Act 2009 (Cth) by failing to comply with a compliance notice issued to it on 30 October, 2019.
3.Pursuant to s.545(1) of the Fair Work Act 2009, the respondent take the steps that were required by the compliance notice within 28 days of this order, by:
(a)calculating and paying to the applicant the outstanding entitlements it was required to pay Grant Herreygers in respect of the period 27 June, 2017 and 10 August, 2018;
(b)calculating and paying superannuation contributions into Grant Herreygers’s nominated superannuation fund for additional superannuation contributions it was required to pay on the outstanding entitlements referred to in paragraph 3(a)(i) (as required by clause 21.2 of the Road Transport and Distribution Award 2010); and
(c)preparing and producing to the applicant a schedule outlining its calculation of the outstanding entitlements it was required to pay Grant Herreygers and the superannuation contributions required to be paid to Grant Herreygers’s nominated superannuation fund referred to in paragraphs 3(a)(i) and 3(a)(ii), and providing proof that the outstanding entitlements and superannuation contributions were rectified as set out in paragraphs 3(a)(i) and 3(a)(ii).
4.Pursuant to s.547(2) of the Fair Work Act 2009, the respondent pay interest to:
(a)the Applicant on the amount owed to the Employee pursuant to paragraph 3(a)(i); and
(b)the Grant Herreygers’s nominated superannuation funds on the additional superannuation contributions required to be paid pursuant to paragraph 3(a)(ii);
within 28 days of this order.
5.The applicant distribute to Grant Herreygers the amounts paid pursuant to paragraphs 3(a)(i) and 3(b)(i) within 90 days of the payment being made.
6.The respondent be served a copy of this order within seven days by posting it to the respondent at the following addresses:
(a)the registered office at C/- Ahrens Accounting, Level 2, 133 Wharf Street, Tweed Heads NSW 2485; and
(b)the principal place of business at 5 Capistrano Court, Southport OLD 4215.
7.The matter is adjourned to 18 March, 2021 at 10:30am for a further hearing in respect of the Applicant's claim for a penalty to be imposed on the Respondent for the contravention declared at paragraph 2.
8.Evidence in chief on the question of penalty be by way of affidavit.
9.The applicant to file and serve evidence and submissions relating to penalty by no later than 21 days prior to the date of the hearing fixed pursuant to order 7.
10.The respondent to file and serve evidence and submissions relating to penalty by no later than 14 days prior to the date of the hearing fixed pursuant to order 7.
Notation: Order 1 has been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to show the addition of ‘13.03B(2)(c)’.
REASONS FOR JUDGMENT
JUDGE JARRETT:
In these proceedings the applicant alleges that the respondent contravened s.716(5) of the Fair Work Act 2009 (Cth) by failing to comply with a compliance notice issued to the respondent pursuant to s.716(1) of the Act on 30 October, 2019. The notice required the respondent to calculate and rectify any underpayments in respect of its employment of one of its employees, Mr Grant Herreygers.
The applicant filed an application and statement of claim on 18 February, 2020. Those documents were served upon the respondent on 24 February, 2020 by sending them to its registered office.
On the first court date for the application – 5 June, 2020, the respondent did not appear. At the invitation of the applicant, the Court ordered that:
(a)the respondent file and serve a response and any other documents required by the Federal Circuit Court Rues 2001, including a defence, by no later than 4:00pm on 19 June, 2020;
(b)the applicant file and serve a reply, if any, by no later than 4:00pm on 26 June, 2020; and
(c)the application be adjourned to 24 July, 2020 at 9:30am for directions.
On 16 June, 2020 the applicant sent an email to the respondent attaching a letter and a copy of those orders and foreshadowing the applicant’s intention to file an application seeking default judgment.
On 21 July, 2020 the applicant served upon the respondent an application in a case seeking default judgment, together with supporting documents. The documents were delivered to the respondent on 23 July, 2020.
The respondent has not appeared in these proceedings nor taken any part in them.
Rule 13.03B(2)(c) of the Federal Circuit Court Rules 2001 (Cth) enables the Court to give judgment against a respondent in a proceeding commenced by an application supported by a statement of claim for the relief that:
(a)the applicant appears entitled to on the statement of claim; and
(b)the Court is satisfied it has power to grant.
Rule 13.03A(2) of the Rules provides that a respondent will be in default for the purposes of rule 13.03B of the Rules if the respondent has not satisfied the applicant’s claim and fails to do one or more of the things specified in the rule.
Rule 13.03C(2) of the Rules provides that if a party to a proceeding is absent from a hearing, the Court may make an order of the kind mentioned in rule 13.03B(2).
An order for default judgment under FCCR 13.03B(2)(c) can be made where there is a basis for the relief sought by the applicant on the face of the statement of claim. It does not require proof by way of evidence of the applicant’s claim. It is sufficient that there is a basis for the relief sought by the applicant on the face of the statement of claim: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3], cited in Luna Park v Bose [2006] FCA 94 at [20] and more recently in Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352 at [14], Fair Work Ombudsman v Al Hilifi [2015] FCA 313 at [19] and Commissioner for Consumer Protection v Unleash Solar Pty Ltd (in liq) (No2) [2016] FCA 1177 at [16]. However, where discretionary relief is claimed, the Court may receive evidence relevant to the exercise of its discretion: ACCC v Yellow Page (No. 2) at [61] to [63], citing Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2006] FCA 1427 at [48] to [51]. These decisions were decided in respect of order 35A of the now repealed Federal Court Rules 1979 (Cth). Rule 13.03B(2)(c) of the Rules is in identical terms to order 35A and is in similar terms to rule 5.23(2)(c) of the current Federal Court Rules 2011 (Cth).
I find that the respondent has been on notice of the proceedings since 24 February, 2020 and has not participated in the proceedings or engaged with the applicant. In particular, the respondent has not appeared at the directions hearing and has not filed any response or other document required by the Federal Circuit Court Rules. At the same time, the respondent has failed to comply with the Court’s order to file documents including a response and a defence and has taken no other steps to defend the proceedings.
I find that the respondent is in default, as defined by FCCR 13.03A(2), in that the respondent:
(a)has not satisfied the applicant’s claim;
(b)has not filed a notice of address for service as required by FCCR 6.01;
(c)has not filed any response and defence within 28 days of being served with the proceedings in accordance with FCCR 4.03 and 4.05;
(d)has not complied by order 1 of the directions made on 5 June, 2020; and
(e)has failed to defend the proceedings with due diligence.
In the statement of claim the applicant alleges:
(a)the respondent is a company providing road transport services from 5 Capistrano Circuit, Southport, Queensland;
(b)the respondent is a national system employer within the meaning of s.14 of the Fair Work Act;
(c)after conducting an investigation, a fair work inspector formed a belief that the respondent had contravened terms of the Road Transport and Distribution Award 2010 and the National Employment Standards relating to minimum wages, overtime, Saturday, Sunday and public holiday penalties, annual leave, annual leave loading and carting livestock allowance;
(d)on 30 October, 2019, a fair work inspector gave the respondent a compliance notice which required the respondent to calculate and rectify any underpayments to Mr Herreygers; and
(e)the respondent did not take the action required by the compliance notice by the due date, or at all, and thereby contravened s.716(5) of the Fair Work Act.
Section 716(5) of the Fair Work Act is a civil remedy provision for the purposes of s.539 of the Fair Work Act.
The applicant seeks the following orders pursuant to s.545(1) of the Fair Work Act:
(a)that the respondent take the steps that were required by the compliance notice within 28 days of this order, by:
(i)calculating and paying to the applicant the outstanding entitlements it was required to pay Mr Herreygers in respect of the period 27 June, 2017 and 10 August, 2018;
(ii)calculating and paying superannuation contributions into Mr Herreygers’s nominated superannuation fund for additional superannuation contributions it was required to pay on the outstanding entitlements referred to in paragraph 25(a)(i) above (as required by clause 21.2 of the Road Transport Award); and
(iii)preparing and producing to the applicant a schedule outlining its calculation of the outstanding entitlements it was required to pay to Mr Herreygers and the superannuation contributions required to be paid to Mr Herreygers’s nominated superannuation fund referred to in paragraphs 25(a)(i) and 25(a)(ii), and providing proof that the outstanding entitlements and superannuation contributions were rectified as set out in paragraphs 25(a)(i) and 25(a)(ii).
Pursuant to s.545(1) of the Fair Work Act, the Court may make any order it considers appropriate if it is satisfied that a person has contravened a civil remedy provision. The Court’s power to make orders under s.545 of the Fair Work Act is broad. The Court is able to make remedial orders pursuant to s.545(1) of the Fair Work Act. The remedial orders sought by the applicant are directed to requiring the respondent to comply with its obligations under the Fair Work Act and the obligations it owes to Mr Herreygers under the Road Transport Award, a modern award under the Fair Work Act. I accept that the orders sought are important to facilitate the objects of the Fair Work Act, which include ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES, modern awards and national minimum wage orders. Such orders are also important to assist the applicant to discharge its statutory functions in s.682 of the Fair Work Act. These statutory functions include, relevantly, to promote compliance with the Fair Work Act and fair work instruments, including by providing assistance to employees, and to commence proceedings in a court to enforce the Fair Work Act.
The applicant is entitled to the relief set out in the statement of claim. It is appropriate to make those orders and to list the proceedings for penalty hearing.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 25 January, 2021. Associate:
Dated: 25 January 2021
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