FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v VIPER INDUSTRIES PTY LTD & ANOR | [2015] FCCA 492 |
| Catchwords: PRACTICE & PROCEDURE – Application for default judgment. |
| Legislation: Fair Work Act 2009 (Cth), ss.546, 716 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | VIPER INDUSTRIES PTY LTD (ACN 157 689 248) |
| Second Respondent: | JACK YOUNES |
| File Number: | SYG 1772 of 2014 |
| Judgment of: | Judge Emmett |
| Date of Last Submission: | 28 January 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2015 |
REPRESENTATION
| Solicitors for the Applicant: | (Fair Work Ombudsman) |
| No appearance by or on behalf of the respondent |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1772 of 2014
| FAIR WORK OMBUDSMAN |
Applicant
And
| VIPER INDUSTRIES LTD (ACN 157 689 248) |
First Respondent
| JACK YOUNES |
Second Respondent
REASONS FOR JUDGMENT
On 27 June 2014, the applicant commenced proceedings against the respondents by way of Statement of Claim alleging the failure by the first respondent to comply with a compliance notice, issued by the applicant on 17 April 2014 in respect of underpayments by the first respondent to an employee in the amount of $6,741.92 (“the Compliance Notice”). The Statement of Claim also pleaded accessorial liability of the second respondent in relation to his knowing involvement in the first respondent’s failure to comply with the compliances notice, as required under s.716 of the Fair Work Act 2009 (Cth) (“the Act”). By Amended Statement of Claim, filed on 30 July 2014, the amount of the underpayment was amended to $6,471.92.
Various orders were made by the Court since the commencement of the proceeding for the respondents to file and serve any Defence. Pursuant to orders made by me on 25 November 2014, and in light of the failure of the respondents to comply with orders of the Court in filing any Defence, the applicant was given leave to file and serve an Application in a Case seeking default judgment, together with evidence by way of affidavit and submissions in support, by 16 January 2015.
On 16 January 2015, the applicant filed an Application in a Case seeking default judgment in respect of the failure of the first respondent to comply with the Compliance Notice and the knowing involvement of the second respondent in…
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- Case
- [2015] FCCA 492
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether Viper Industries had contravened section 716 of the Act by failing to comply with the compliance notice, and whether Mr. Smith had contravened section 550 of the Act by being knowingly concerned in Viper Industries' contravention. The Court was also required to determine the appropriate civil penalty to be imposed on each respondent for their respective contraventions.
Emmett J found that Viper Industries had failed to comply with the compliance notice issued by the Fair Work Ombudsman, thereby contravening section 716 of the Act. His Honour also found that Mr. Smith was knowingly concerned in Viper Industries' contravention, and therefore contravened section 550 of the Act. In determining the appropriate civil penalties, the Court considered the nature and circumstances of the contraventions, the size of the employer, and the need for deterrence. The Court ordered Viper Industries to pay a penalty of $10,200 and Mr. Smith to pay a penalty of $2,040.
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