FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v W.K.O. Pty Ltd [2012] FCA 1129
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- Case
- [2012] FCA 1129
- Decision Date
CaseChat Overview and Summary
The primary legal issues involved determining the appropriate penalties for the admitted contraventions and whether a discount should apply for the respondents' cooperation and early admission of liability. The court considered the principles of contrition, cooperation, and corrective action as mitigating factors in the penalty calculation. The respondents argued for a 20% discount on the penalty, citing their cooperation with the FWO and early admissions, which aligned with the criteria set out in the decision of Mornington Inn. The court assessed the submissions and determined that a discount was appropriate given the respondents' demonstrated cooperation and contrition.
The court found that the respondents had shown sufficient contrition and cooperation, justifying a 20% discount on the penalty. The penalties were calculated based on the seriousness of the contraventions, the degree of culpability, and the harm caused to the employee. The court ordered W.K.O. Pty Ltd to pay a penalty of $13,200 and compensation to the employee of $5,000. These amounts were to be paid in instalments over a period of time. The penalty for Ms O’Leary was set at the same amount and was suspended unless the company failed to pay its penalty and compensation within the specified timeframe. The court's decision aimed to ensure compliance with minimum workplace standards and provide appropriate redress to the affected employee.
Orders
Orders of the court
1. Pursuant to s 546(1) of the FW Act, the first respondent pay a penalty of $13,200 in respect of the contraventions of s 44(1), s 45, s 340(1), s 345(1) and s 351(1) of the FW Act.
2. Pursuant to s 545(2)(b) of the FW Act, the first respondent pay compensation to Ms Nederpel for economic and non-economic loss of $5,000 gross.
3. The penalties and compensation be paid as follows:
(a) the compensation of $5,000 be paid to Ms Nederpel within 30 days of the decision of the Court;
(b) the penalty of $13,200 be paid to the Consolidated Revenue Fund, in accordance with s 546(3) of the FW Act, over the subsequent five month period from the date of the decision of the Court in equal instalments of $2,640.
4. Pursuant to s 546(1) of the FW Act, the second respondent pay a penalty of $13,200 in respect of the contraventions of s 44(1), s 45, s 340(1), s 345(1) and s 351(1) of the FW Act.
5. Pursuant to s 545(2)(b) of the FW Act, the second respondent pay compensation to Ms Nederpel for economic and non-economic loss of $5,000 gross.
6. Orders 4 and 5 be suspended unless the first respondent fails to pay the penalty and compensation the subject of orders 1 and 2 within the time specified in order 3, in which case the second respondent pay the penalty and compensation the subject of orders 4 and 5 within 30 days of the default of the first respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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 parties agree that Ms O’Leary was the “directing mind and will” of WKO. The nature and extent of the contravening conduct of Ms O’Leary are outlined above, and the parties say there is no evidence before the Court that the contraventions were attributable to any other person or agent.CONTRITION, COOPERATION WITH ENFORCEMENT AUTHORITY AND CORRECTIVE ACTION It is agreed by the parties that there has been acceptance of wrongdoing by WKO and Ms O’Leary shown by various admissions made in respect of the contraventions of the FW Act as outlined in the statement of agreed facts and joint submissions. It is the parties’ joint position that the admission of liability and the statement of agreed facts that it is appropriate for Ms Nederpel to receive a payment of compensation in the circumstances are evidence of contrition for the contravening conduct. The parties submit that as Ms O’Leary is the “directing mind and will” of WKO, and the proper legal position has been brought to her attention through these proceedings, it is unlikely that either she or WKO will be involved in similar contraventions in the future or that any other corrective action is required. WKO and Ms O’Leary did cooperate during the applicant’s investigation relating to this matter. In the statement of agreed facts WKO and Ms O’Leary admit to seven contraventions of the FW Act (this is instead of the nine alleged contraventions in the applicant’s statement of claim, however, there was also factual overlap between the seven admitted contraventions and the remaining two non admitted contraventions of the FW Act). The statement of agreed facts eliminates the need for the parties to prepare for a contested liability hearing. Counsel for the FWO said since the respondents entered an early plea and avoided a contested hearing, they ought to have a benefit of a 20 per cent discount in the maximum penalty that is generally applied in such circumstances. The parties say that where respondents have cooperated with the FWO and the Court and also make admissions early in the course of an investigation or soon after the commencement of proceedings it is appropriate to allow a discount on penalty (in the vicinity of 10% to 25%). However, consistent with the decision in Mornington Inn at [76] per Stone and Buchanan JJ: the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice. WKO and Ms O’Leary have made admissions and spared the need for a contested liability hearing as well as showing some contrition. The parties submit accordingly, that a discount of 20%, should be applied to the penalty on the basis of their demonstrated cooperation, which shows some contrition, in these proceedings: Mornington Inn at [73]–[80]. The parties have factored this in to the recommended penalty, which I will soon turn, that includes a discount for these factors.ENSURING COMPLIANCE WITH MINIMUM STANDARDS