FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Upper East Side Bondi [2021] FedCFamC2G 354
ORDERS
SYG 479 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: UPPER EAST SIDE BONDI PTY LTD ACN 617 357 007
First Respondent
JULIA ROSE GELONESE
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS THAT:
1.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) (“FW Act”):
(a)The First Respondent pay a pecuniary penalty of $22,050 for the two declared contraventions of section 716(5) of the FW Act by failing to comply with the Full-time Compliance Notice and the Casual Compliance Notice; and
(b)The Second Respondent pay a pecuniary penalty of $4,410 for her involvement within the meaning of section 550(2) of the FW Act in the First Respondent’s two declared contraventions of section 716(5) of the FW Act,
within 28 days of this order.
2.The Applicant has liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
Note: The form of the order is subject to the entry in the Court’s records.
Keep reading for free
Create a free CaseChat account to read Fair Work Ombudsman v Upper East Side Bondi and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] FedCFamC2G 354
- Decision Date
CaseChat Overview and Summary
The court had to determine if the evidence demonstrated that the respondents had demonstrated any meaningful contrition, corrective action, or co-operation with the Fair Work Ombudsman or the court. Additionally, the court had to decide if the contraventions constituted a single course of conduct warranting a single penalty and assess the appropriate level of deterrence and penalty. The court found that the respondents had not shown any meaningful contrition or corrective action, and they continued to operate the restaurant business without ensuring employees received their entitlements. The contraventions arose from the same course of conduct with common elements, allowing for a single penalty. The court also considered the importance of deterrence, both specific and general, in ensuring compliance with the Fair Work Act. Ultimately, the court found that the penalties imposed should be in the higher range to reflect the highly aggravating conduct of the respondents.
The court ordered that a single penalty be imposed for the two contraventions, considering the nature and gravity of the breaches. The penalty was set within the range proposed by the Fair Work Ombudsman, ensuring it was proportionate to the conduct without being crushing or oppressive. The court's decision emphasised the importance of compliance with the Fair Work Act and the need for deterrence to prevent future breaches. The final orders were made in accordance with the court's reasoning, ensuring that the respondents were held accountable for their actions.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
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
The evidence is that the first respondent is still operating a restaurant despite what appears to be a submission to the contrary. The second respondent remains its director. Contrition, Corrective Action and Co-Operation Even after many months of engagement with the FWO, and through the Court process, the respondents have not expressed any meaningful contrition. In fact, the second respondent retains an air of incredulity in respect of the first respondent’s failures. The first respondent has not complied with the Court’s orders of 29 March 2021. In these circumstances, the Court is still not in a position to be satisfied that the relevant employees have received their entitlements. Course of Conduct and Grouping The proceedings concern two contraventions of s.716(5) and as such they do not constitute a single course of conduct within the meaning of s.557 FW Act. However, it is open to the Court to impose a single penalty for multiple contraventions if they have “common elements” (Fair Work Ombudsman v Offshore marine Services Pty Ltd [2021] FCA 498 at [7], [23]-[26]). The Compliance Notices were provided to the first respondent on the same date, and while they were each issued in respect of different groups of employees, namely those who were employed on a full-time basis and those who were employed on a casual basis, the notices required similar steps to be taken. The failures to comply with the Compliance Notices were contraventions that arose out of a single course of conduct with the same factual circumstances, and it is therefore appropriate that a single penalty be imposed in respect of the two contraventions of s.716(5).Deterrence The first respondent continues to operate its restaurant business and employ staff. The second respondent continues to hold her position as director and general manager of the restaurant business, and continues to have responsibility for overseeing employee’s entitlements. Specific deterrence is therefore relevant. General deterrence is also an important factor for the Court’s consideration. It is vital for the purposes of the FW Act that the public is left in no doubt as to there being positive obligations to comply with statutory notices issued by FWO, such as compliance notices. Penalty Imposed Whilst the penalty imposed must not be crushing or oppressive, it must be proportionate to the conduct engaged in by the respondents and not have the effect of exonerating the conduct (Kelly at [30]; McAlary-Smith at [23] per Gray J, at [66]-[73] per Graham J, at [98]-[102] per Buchanan J; Fair Work Ombudsman v Promoting U Pty Ltd & Anor [2012] FMCA 58 at [55]-[57].) There is no evidence as to the specific financial position of either respondent, and as such, it is difficult to accept the respondents’ submissions that the penalty sought by FWO would be crushing or oppressive. The Court finds that the conduct of the respondents is highly aggravating, and that the penalties imposed should be in the higher range whilst applying a single penalty for the two contraventions.