Fair Work Ombudsman v Viota

Case [2021] FedCFamC2G 119


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Viota [2021] FedCFamC2G 119

File number(s): MLG 3377 of 2020
Judgment of: JUDGE RILEY
Date of judgment: 7 October 2021
Catchwords: INDUSTRIAL LAW – failure to comply with compliance notice – declaration and penalties – hair dressing salon
Legislation: Fair Work Act 2009, ss 539(2), 545(1), 546(1), 546(3)(a), 547(2) and 716(5)
Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (2018) 262 CLR 157; (2018) 351 ALR 190; (2018) 92 ALJR 219; (2018) 273 IR 211; [2018] HCA 3

Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665; (2008) ASAL 55-176; (2007) ATPR 42-138; [2006] FCA 1427

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; (2008) 246 ALR 35; [2008] FCAFC 8

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; (2015) 326 ALR 476; (2015) 90 ALJR 113; (2015) 255 IR 87; (2015) 326 ALR 476; [2015] HCA 46

Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364

Fair Work Ombudsman v Bedington [2012] FMCA 1133

Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown (2017) 275 IR 148; [2017] FCA 1301

Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7

Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; (2008) 247 ALR 714; (2008) 171 IR 455; [2008] FCAFC 70

Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; (2008) 177 IR 243; [2008] FCAFC 170

Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; (2007) 162 IR 444; [2007] FCAFC 65

Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412

Division Division 2 General Federal Law
Number of paragraphs: 70
Date of hearing: 24 August 2021
Place: Melbourne
Advocate for the applicant Nicholas Simeon
Solicitors for the applicant Office of the Fair Work Ombudsman
Advocate for the respondent In person
Solicitors for the respondent None

ORDERS

MLG 3377 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FAIR WORK OMBUDSMAN
Applicant

AND:

JORGE GUILLERMO VIOTA
Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

7 OCTOBER 2021

UPON THE ADMISSIONS MADE BY THE RESPONDENT, THE COURT DECLARES THAT:

1.The respondent contravened s.716(5) of the Fair Work Act 2009 (“the Act”) by failing, without reasonable excuse, to comply with a compliance notice issued on 11 March 2020.

THE COURT ORDERS BY CONSENT THAT:

2.Within 28 days, pursuant to s.545(1) of the Act, the respondent pay:

(a)to the nominated bank account of Samantha Dove, the amount of $19,669.45, which the respondent was required to pay pursuant to the compliance notice, less the required amount of taxation;

(b)to the Commissioner of Taxation, the required amount of taxation.

3.Within…

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Fair Work Ombudsman v Viota [2021] FedCFamC2G 119
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[2021] FedCFamC2G 119
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CaseChat Overview and Summary

In the matter of Fair Work Ombudsman v Viota, the Fair Work Ombudsman sought a declaration and penalties against the respondent, a hairdresser, for failing to comply with a compliance notice that mandated payment of underpaid wages and unpaid superannuation to an employee. The respondent, who was the sole trader and manager of the business, was found to have contravened the Fair Work Act 2009 by not paying the employee her minimum entitlements. The Federal Circuit and Family Court of Australia was tasked with determining whether the respondent's actions warranted a declaration and pecuniary penalties.

The court needed to consider several legal issues, including the respondent's level of contrition, corrective action, and cooperation with the authorities, as well as the necessity to ensure compliance with minimum standards and the importance of specific and general deterrence. The respondent had expressed remorse for underpaying the employee but had not directly apologised to her and had failed to take corrective action by paying the outstanding amounts. The court also had to evaluate whether the proposed penalties would sufficiently deter the respondent and others from engaging in similar conduct in the future.

The court found that the respondent's level of contrition was low, as he had not shown genuine remorse to the employee and had not taken any meaningful corrective action. Despite entering into an agreed statement of facts and apologising in his affidavit, the respondent had not paid the outstanding amounts to the employee. The court also highlighted the importance of ensuring compliance with minimum standards and the need for specific and general deterrence. In light of these considerations, the court found that the respondent's conduct warranted a declaration and pecuniary penalties.

The court ordered the respondent to pay pecuniary penalties, unpaid wages, unpaid superannuation and interest to the employee, and to make a contribution to the Fair Work Ombudsman’s Compliance and Enforcement Fund. The court also made a declaration that the respondent had contravened the Fair Work Act 2009.

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

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Ratio Decidendi

Legal Principle Established

The respondent was the senior manager of the business in the sense that he was a sole trader and entirely in control of the business.i. contrition, corrective action and co-operation with the authorities The respondent did not dispute his liability. He entered into an agreed statement of facts, but only after the applicant filed an application for default judgment on 5 February 2021. However, the respondent did not concede the amounts outstanding to Ms Dove for underpaid wages and unpaid superannuation until after the hearing began. As at the date of hearing, being 24 August 2021, the respondent had not paid Ms Dove the outstanding amounts, although the applicant had served the compliance notice on 11 March 2020. The applicant offered the respondent an opportunity to enter into a payment plan in April 2020, but he declined. The respondent apologised in his affidavit and during the hearing for his underpayment of Ms Dove. However, there was no evidence that he has apologised directly to her. j. the need to ensure compliance with minimum standards The respondent in this case breached Ms Dove’s minimum entitlements.k. the need for specific and general deterrence In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; (2015) 326 ALR 476; (2015) 90 ALJR 113; (2015) 255 IR 87; (2015) 326 ALR 476; [2015] HCA 46, French CJ, Kiefel, Bell, Nettle and Gordon JJ said at [55]:No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:“Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.”(footnotes omitted) Similarly, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (2018) 262 CLR 157; (2018) 351 ALR 190; (2018) 92 ALJR 219; (2018) 273 IR 211; [2018] HCA 3, Keane, Nettle and Gordon JJ said at [116]:As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty's general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d'être of its imposition.(footnotes omitted)