Fair Work Ombudsman v WCH Services Pty Ltd
[2018] FCCA 1878
•10 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v WCH SERVICES PTY LTD & ANOR | [2018] FCCA 1878 |
| Catchwords: INDUSTRIAL LAW – Penalty – undefended – contravention of s.405 of the Fair Work Act 2009 (Cth) – pecuniary penalty imposed – penalty to be paid to the Commonwealth – costs awarded to the Applicant. |
| Legislation: Fair Work Act 2009 (Cth), ss.405, 546, 550, 570. Fair Work Regulations 2009 (Cth), reg.5.05. Cleaning Services Award 2010, cls.7, 14.5. |
| Cases cited: Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52. NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285. |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | WCH SERVICES PTY LTD |
| Second Respondent: | WILLIAM COLLEN HANCOCK |
| File Number: | MLG 662 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 1 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 July 2018 |
REPRESENTATION
| Solicitor acting as Counsel for the Applicant: | Van Korven |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| The First Respondent: | No appearance |
| The Second Respondent: | No appearance |
THE COURT ORDERS THAT:
Pursuant to s.546(1) of the Fair Work Act 2009 (Cth) (‘the Act’) that:
(a)the First Respondent, WCH Services Pty Ltd, pay a penalty of $32,400, for its contravention of s.405 of the Act; and
(b)the Second Respondent, William Collen Hancock, pay a penalty of $6,480, for his involvement in the First Respondent’s contravention of s.405 of the Act.
Pursuant to s.546(3) of the Act the pecuniary penalties ordered to be paid by the First and Second Respondents be paid into the Consolidated Revenue Fund of the Commonwealth within 28 days of the date of this order.
Pursuant to s.570(2)(b) of the Act that the Respondents, jointly and severally, pay the costs of these proceedings incurred by the Applicant within 28 days of this order.
The costs in order 3 be fixed at $3,704.00.
The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 662 of 2017
| FAIR WORK OMBUDSMAN |
Applicant
And
| WCH SERVICES PTY LTD |
First Respondent
| WILLIAM COLLEN HANCOCK |
Second Respondent
REASONS FOR JUDGMENT
This judgment concerns the First Respondent’s failure to comply with an order of the Fair Work Commission relating to the unfair dismissal of Mr Robert Maat.
Background
Mr Maat was employed by the First Respondent from around 12 December 2014 to 4 April 2016 as a trolley collector. On or around 4 April 2016, Mr Maat’s employment was terminated. On 18 April 2016, Mr Maat lodged an application for an unfair dismissal remedy with the Fair Work Commission.
The Second Respondent sought a two month adjournment of the Fair Work Commission hearing as he “amongst other things, had a brick cleaning job on Monday 22 August 2016 which he needed to do as he was undergoing hardship.”[1] Mr Maat opposed the adjournment. Commissioner Cribb wrote to the Second Respondent, attaching Mr Maat’s response and advising that it was the Commission’s view that, subject to anything further from the Second Respondent, it was highly likely the adjournment request would be refused. A response from the Second Respondent was received by the Commission; however it did not address Mr Maat’s opposition to the adjournment application. The adjournment was refused for the following reasons:-
a)the Second Respondent had received two months’ notice of the date of the hearing; and
b)the Commission had not received any response from the Respondent which had persuaded the Commission to change its preliminary view.
[1]Decision of Commissioner Cribb dated 23 November 2016 as contained in the affidavit of Mr Maat affirmed 14 December 2017, Annexure RJM-1.
The Second Respondent did not attend the hearing on 22 August 2016, however the documents provided by him were considered by the Commissioner. A transcript of the hearing was sent to the Second Respondent to give him an opportunity to provide a sworn statement of “the employer’s side of the story”.[2] The Second Respondent did not provide a response.
[2] Decision of Commissioner Cribb dated 23 November 2016 as contained in the affidavit of Mr Maat affirmed 14 December 2017, Annexure RJM-1, paragraph 8.
On 23 November 2016, Commissioner Cribb found that the First Respondent unfairly dismissed Mr Maat as it did not comply with its consultation obligations under cls.7 and 14.5 of the Cleaning Services Award 2010. The First Respondent was ordered to pay Mr Maat the sum of $962.28, less applicable taxation, within 21 days. The sum ordered was representative of the amount Mr Maat would have earned during the consultation period the First Respondent was obliged to provide.
On 28 February 2017, a Fair Work Inspector made findings against the First Respondent, pursuant to reg.5.05 of the Fair Work Regulations 2009 (Cth) (‘the Regulations’), as the First Respondent had failed to comply with the Fair Work Commission order. The Fair Work Inspector required the First Respondent to pay the amount ordered by 16 March 2017. There was no payment, of any sum, made.
As a result of the First Respondent’s non-compliance with the order of Commissioner Cribb, the Applicant filed an application on 31 March 2017 with the Court seeking the following:-
“…
26. A declaration that the First Respondent contravened section 405 of the FW Act by contravening a term of the Order.
27. A declaration that the Second Respondent was involved in the First Respondent's contravention of section 405 of the FW Act, pursuant to section 550( 1) of the FW Act.
28. An order pursuant to section 545(2)(b) of the FW Act that within 14 days of these orders, the First and Second Respondents, jointly and severally, pay the Applicant the amount of $962.28, less applicable taxation, (Outstanding Amount) for compensation for the loss suffered by Mr Maat with respect to the First Respondent's contravention of section 405 of the FW Act.
29. An order pursuant to section 547(2) of the FW Act that, within 14 days of these orders, the First and Second Respondents, jointly and severally, pay the Applicant interest at the applicable pre-judgment rate on the Outstanding Amount (Interest).
30. An order that within 14 days of receipt of the Outstanding Amount and Interest (or part thereof), the Applicant will:
(a) pay Mr Maat the amount received; or
(b) in the event that the Applicant cannot locate Mr Maat, pay the amount received to the Commonwealth.
Orders pursuant to section 546(1) of the FW Act imposing a pecuniary penalty on each of the First Respondent and the Second Respondent for the contraventions set out in paragraphs 19 and 25 respectively.
32. Orders pursuant to section 546(3)(a) of the FW Act that the First Respondent and the Second Respondent each pay their respective pecuniary penalties to the Commonwealth within 28 days of these orders.
33. An order that the Applicant have liberty to apply on seven days' notice in the event that any of the preceding orders are not complied with.
34. An order pursuant to section 570 of the FW Act that the First and Second Respondents, jointly and severally, pay the Applicant's costs incurred by reason of these proceedings.”
On 10 April 2017, the Applicant filed an application seeking that this proceeding be heard together with related proceedings number MLG223/2017 (‘the Sutherland proceedings’) and number MLG2383/2016 (‘the Shortland proceedings’). The Applicant also sought orders for substituted service.
On 13 April 2017 the Court ordered this proceeding be heard together with related proceedings number MLG2383/2016 (‘the Shortland proceedings’) and number MLG223/2017 (‘the Sutherland proceedings’) and for substituted service in this proceeding to be effected upon the Respondents.
On 28 June 2017, the Applicant filed an application seeking default judgment.
On 3 July 2017, the Court adjourned the proceedings for hearing to 7 August 2017 and ordered relevantly:-
“…
(2) Each party file and serve any material including affidavit evidence which they seek to rely within 21 days of this date.
(3) In the event the First and Second Respondent fail to file any response and affidavit of evidence in respect of these proceedings and fail to attend the hearing date, there is liberty to the Applicant to seek to proceed on an undefended basis.
(4) A copy of this order be served, by the solicitor for the Applicant, as soon as is practicable and proof of such service provided at the hearing.”
Neither the First nor Second Respondents’ filed any documents with the Court. On 7 August 2017, the First and Second Respondents were called outside the Court and failed to answer the call. The Court was satisfied, having regard to the affidavit affirmed by Ms Joanna Williams and dated 4 August 2017, that the Respondents had been served in accordance with the orders made by the Court for substituted service.
Upon hearing the Applicant, the Court made declarations and orders as follows:-
“THE COURT DECLARES THAT:
A. Based on the admissions which the First Respondent is deemed to have made by reason of its default, pursuant to r.13.03A(2) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’), the First Respondent contravened s.405 of the Fair Work Act 2009 (Cth) (‘the Act’) by contravening a term of an order made against the First Respondent by the Fair Work Commission pursuant to section 392 of the Act, being an order of Commissioner Cribb dated 23 November 2016 in Maat v WCH Services Pty Ltd T/A WCH Services (U2016/1790).
B. Based on the admissions which the Second Respondent is deemed to have made by reason of his default, pursuant to r.13.03A(2) of the Rules, the Second Respondent was involved in the contravention of the First Respondent set out in paragraph A above, pursuant to s.550(1) of the Act.
AND THE COURT ORDERS THAT:
1. Default judgment be entered for the Applicant against the First and Second Respondents pursuant to r.13.03B(2)(c) of the Rules.
2. Pursuant to s.545(2)(b) of the Act, within 14 days of this order, the First Respondent and Second Respondent, jointly and severally, pay the Applicant the amount of $962.28 less applicable taxation (‘Outstanding Amount’) for compensation for the loss suffered by Mr Robert Maat (‘Employee’) with respect to the First Respondent’s contravention of s.405 of the Act.
3. Pursuant to s.547(2) of the Act, within 14 days of this order, the First Respondent and the Second Respondent, jointly and severally, pay the Applicant interest at the applicable pre-judgment rate on the Outstanding Amount (Interest).
4. Within 14 days of receipt of the Outstanding Amount and Interest referred to at paragraphs 2 and 3 (or part thereof), the Applicant will:-
a) pay the Employee the amount received; or
b) in the event that the Applicant cannot locate the Employee, pay the amount received to the Commonwealth.
5. The matter is adjourned to 1 March 2018 at 10 am for a further hearing in respect of the Applicant’s claim for penalties and additional orders to be imposed on the First Respondent and Second Respondent.
6. The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.”
Imposition of Penalty
The Applicant seeks that the Court impose pecuniary penalties on the First Respondent for contravening s.405 of the Act, and the Second Respondent for being involved in the First Respondent’s contravention pursuant to s.550(1) of the Act, as declared by the Court on 7 August 2018.
On 11 August 2017, Ms Joanna Williams, previous solicitor for the Applicant, sent a letter to the First and Second Respondents by express post informing them of the 7 August 2017 orders and providing payment notifications to pay the amounts in those orders.
On 10 October 2017, Mr Kerry O’Brien, solicitor for the Applicant, sent a letter to the Respondents by express post and by email advising the Respondents of the date of the penalty hearing and seeking their consent to future timetabling.[3]
[3] Affidavit affirmed by Mr Kerry O’Brien, Solicitor dated 15 December 2017.
On 2 January 2018, Mr O’Brien spoke with the Second Respondent on the telephone. When asked whether the Second Respondent had received letters sent to him by the Applicant, he replied:-
“Yes, I have but I don't enjoy reading. I shouldn't be expected to read all that when I can't read well and can't use computers.”[4]
[4] Affidavit affirmed by Mr Kerry O’Brien, Solicitor dated 28 February 2018.
The Applicant made repeated attempts to contact the First and Second Respondents by telephone to encourage their participation in the proceedings. Other than the conversation of 2 January 2018, the Respondents have not made any contact with the Applicant, or the Court, in relation to the penalty hearing. Since the commencement of the Fair Work Commission proceedings, the Applicant has made over 100 separate attempts to contact the Respondents. The Court is satisfied the Respondents were aware of the date of the penalty hearing.
The amounts required to be paid by the Second Respondent pursuant to the Fair Work Commission orders remain unpaid.
The Court may impose penalties on the First and Second Respondents pursuant to sub-s.546(1) of the Act as a result of the contraventions declared by the Court on 7 August 2017 (as detailed in paragraph 13 above). Each of the Respondents was found to have contravened s.405 of the Act. The maximum penalties the Court may impose in these circumstances where there has been a single contravention of the Act by each Respondent, are as follows:-
a)$54,000 for the First Respondent; and
b)$10,800 for the Second Respondent.
No grouping or course of conduct considerations arise.
The Applicant submits that the contraventions of each the Respondents is serious in nature and that significant penalties should be imposed. The Applicant proposes a penalty in the range of 60% to 70% of the maximum penalties. In monetary terms, that is a penalty of:-
a)between $32,400 to $37,800 in respect of the First Respondent; and
b)between $6,480 to $7,560 in respect of the Second Respondent.
The Applicant seeks the penalties be paid to the Consolidated Revenue Fund of the Commonwealth within 28 days of the order.
The Applicant submits that heavy penalties are necessary in this matter, to reflect the following:-
a)the Respondents’ failure to co-operate with the Applicant during its investigations and after the commencement of the proceeding;
b)the Respondents’ lack of contrition or corrective action;
c)the effect of the underlying contravention on vulnerable, low-skilled and low-paid workers in regional Victoria; and
d)the strong need for both general and specific deterrence.
The Applicant relied upon the following documents:
a)application and statement of claim filed 31 March 2017;
b)affidavits of Ms Joanna Williams affirmed 28 June 2017; 30 June 2017; 21 July 2017; and 4 August 2017;
c)affidavits of Mr David Mullins affirmed 28 June 2017; and 4 August 2017;
d)the affidavit of Mr Robert Maat affirmed 14 December 2017; and
e)the affidavit of Mr Kerry O’Brien affirmed 15 December 2017.
The Applicant relied upon material filed in each proceeding in all proceedings.
The First and Second Respondents put no evidence before the Court and did not participate in the proceedings.
Principles relevant to the determination of penalty
In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476, the High Court of Australia explained the purpose for the imposition of civil penalties as follows:-
“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.”
A non-exhaustive list of factors relevant to the imposition of a penalty was summarised by Mowbray FM (as he then was) in Mason v Harrington Corp Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7, 26-59. Those factors include:-
a)the nature and extent of the conduct which led to the breaches;
b)the circumstances in which that conduct took place;
c)the nature and extent of any loss or damage sustained as a result of the breaches;
d)whether there has been similar previous conduct by the respondent;
e)whether the breaches were properly distinct or arose out of the one course of action;
f)the size of the business enterprise involved;
g)whether or not the breaches were deliberate;
h)whether senior management was involved in the breaches;
i)whether the party committing the breach had exhibited contrition, taken corrective action and cooperated with the enforcement authorities;
j)the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
k)the need for specific and general deterrence.
This summary was adopted by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080 (‘Kelly’). While the summary is a convenient check list, it does not prescribe or restrict the matters which may be taken into account in the exercise of the Court’s discretion.[5]
[5] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560, 91.
Nature, extent and circumstances which led to the breaches
A contravention of s.405 of the Act requires there first to be successful proceedings in the Fair Work Commission, and then, a failure to comply with an order imposed by the Fair Work Commission with an accompanying exhaustion of a party’s appeal rights.
In Mayberry v Kijani Investments Pty Ltd [2011] FCA 1238, 20, Katzmann J made the following remarks in relation to a contravention of s.405 of the Act:
“Employers, no less than employees, are expected to comply with the orders of Fair Work Australia. Failure to do so is liable to bring the system of regulation of industrial disputes into disrepute. Kijani’s conduct signifies a refusal to accept the umpire’s decision. It should not go unpunished.”
As submitted by the Applicant, the Respondents had repeated opportunities to comply with the Fair Work Commission orders and, later, to rectify the amounts ordered therein, including:-
a)at the time of the Fair Work Commission orders;
b)when the Applicant began its investigation and, again, when a Fair Work Inspector exercised his powers under reg.5.05 of the Regulations;
c)when the solicitors for the Applicant informed the Respondents that litigation would commence;
d)at the commencement of these proceedings;
e)on the Respondents’ default in each of the proceedings.
The Respondents had more than four months to comply with Commissioner Cribb’s order prior to the Fair Work Ombudsman commencing proceedings in this Court. The Respondents have made no attempt to comply with the orders of the Fair Work Commission.
Nature and extent of the loss
The Respondents’ failure to pay the sum ordered by the Fair Work Commission to Mr Maat in accordance with those orders has caused Mr Maat, who has remained unemployed since his termination from the First Respondent’s business, actual financial and emotional hardship. He has been deprived of the use of $962.28. Mr Maat had, at the time of swearing his affidavit on 14 December 2017, been reliant on Centrelink benefits since his dismissal.
Size and financial circumstances of the business
In relation to the impact of the size and financial circumstances of the business, the Applicant submitted:-
“The Respondents financial position at the time of the contravention is not relevant to the question of penalty. The relevant consideration is the objective seriousness of the conduct”[6]
The authority used to support this assertion was Kelly at paragraph 28.
[6] Applicant’s submissions filed 21 July 2017, paragraph 79.
The Applicant raised the same argument, again relying on Kelly as authority for same, in Hansen v Mt Martha Community Learning Centre Inc (No 2) [2015] FCA 1283 before Jessup J. In response to the argument, his Honour said the following:-
“It was submitted on behalf of the applicant, remarkably in my respectful assessment, that ‘the size and financial resources of a business is not relevant’ Counsel relied on the judgment of Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14 for the proposition that “a penalty will normally be imposed at a meaningful level”. In that case, his Honour said (166 IR at 21, [28]):
No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction “must be imposed at a meaningful level”: see Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52 at [39-41].
So much may be accepted, but what constitutes an ‘appropriate monetary sanction’, or the imposition of a penalty at a ‘meaningful level’, can rarely be determined without at least some considerations of the size of the relevant contravener, as Tracey J himself accepted in Kelly (see 166 IR at 18-19 [14] and 20 [21]).”
The Full Court of the Federal Court of Australia also addressed this issue in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285, 293-294 (‘NW Frozen Foods’):-
“In [Trade Practices Commission v TNT Australia Pty Ltd [1995] ATPR 40,161] (at 40,168), it was pointed out that some other factors which have been regarded as important actually flow from what French J called in CSR Ltd (at 52,152) “the primacy of the deterrent purpose in the imposition of penalty”. One of those factors is the size of the corporation involved, since “what would deter a small company might have little effect on a very large one”.”
The Full Court of the Federal Court of Australia confirmed the decision of NW Frozen Foods in the judgment of Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52, stating:-
“The correctness of this explanation of the significance of the size of the contravener to the matter of deterrence has not, so far as we can see, ever been doubted by the Full Court, and remains good law”.
The Court rejects the Applicant’s argument that the financial position of the First and Second Respondents is not relevant to the question of penalty. It is difficult for the Court, however, to determine an appropriate discount in this regard as the Respondents have not placed before the Court evidence as to their financial circumstances.
Deterrence
There is a need for specific deterrence in this proceeding. The Respondents failure to engage with the Applicant, the Fair Work Commission and this Court indicates a lack of remorse. The First Respondent continues to operate a business and the Second Respondent continues to act as the director of that business. Any penalty imposed by the Court is required to resonate with the Respondents’ such that they do not engage in any future non-compliance of workplace laws.
The Applicant submits that there is also a need for general deterrence in this proceeding to send a message to other employers in the community, particularly those:-
a)who are subject to unfair dismissal proceedings in the Fair Work Commission and have orders made against them;
b)who employ low-skilled workers, especially in regional areas, where these employees may be vulnerable due to their age, geographic location and skill level; and
c)who operate in the trolley collection industry in general.
The Court accepts there is a need for general deterrence in this matter.
The Second Respondent’s involvement in the contraventions
The Court has found that the Second Respondent was involved in each of the First Respondent’s contraventions. The evidence before the Court, which the Court accepts, was that the Second Respondent:-
a)was, at all relevant times and is, the sole director of the First Respondent;
b)decided to terminated Mr Maat’s employment;
c)engaged with the Fair Work Ombudsman during its investigation of the underlying contraventions;
d)decided that the First Respondent would not comply with the orders of the Fair Work Commission;
e)operated the First Respondent’s business at the time of the contravention.
The Court must impose a penalty upon the Second Respondent that meaningfully reflects his involvement in, and authorisation of, the contravention.
Other matters
The Court finds the Respondent’s failure to comply with the order of the Fair Work Commission was deliberate. The Respondents have demonstrated no contrition or corrective action, in particular any taken by the corporation to correct its illegal approach and change its behaviour. The sum ordered by the Fair Work Commission remains owing to Mr Maat and the Respondents have not demonstrated any intention to pay the sum in the future.
This is the first time the Respondents have been found to have contravened workplace laws. The Respondents’ status as first time contraveners is a mitigating factor and may ordinarily warrant a discount on penalty, however, its impact in this case is limited by the evidence before the Court that the Respondents were aware of unsatisfactory wage practices, did not comply with consultation provisions in the cleaning award, as well as the duplicitous nature of the three sets of proceedings before the Court.
Consideration
The penalty imposed must not be crushing or oppressive.[7] However it must reflect the seriousness of the conduct engaged in by the Respondents.[8] The penalty imposed should be imposed on a meaningful level.[9]
[7] Kelly, 30.
[8] Fair Work Ombudsman v Promoting U Pty Ltd [2012] FMCA 58.
[9] Kelly, 28.
The Respondent’s failure to comply with the orders of the Fair Work Commission, despite repeated opportunities to do so, demonstrates a complete lack of regard for the authority of the Fair Work Commission. The Fair Work Commission was the appropriate forum to decide the dispute between the Respondents and Mr Maat. Any penalty imposed by this Court must reflect the Court’s disapproval of the Respondents’ complete ignoring of an order made by the Fair Work Commission; the Respondents’ failure to engage in any meaningful way with the Fair Work Ombudsman; and the Respondents’, to date, failure to comply with orders of the Court. The First Respondent continues to carry on business as directed by the Second Respondent.
The Respondents have no evidence before the Court as to their financial position, and as such, the Court has limited insight as to capacity of the Respondents to pay any penalty imposed. The Court however, has regard to the fact that the business operated by the First Respondent is a small business.
Accordingly, the Court will make orders for the imposition of civil penalties on the First and Second Respondents in the amount of 60% of the maximum penalties.
Costs
The Applicant also seeks that the Court make a costs order under s.570 of the Act.
The Act provides that each party bear its own costs in proceedings such as these. However, if the conditions set out in s.570(2) of the Act are met, the Court may, in its discretion, make a costs order.
Section 570(2) of the Act is as follows:-
“(2) The party may be ordered to pay the costs only if:
(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i) the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.”
The Applicant submits that the Court should make a costs order pursuant to s.570(2)(b) or (c) of the Act.
The Applicant submits that the unreasonable acts engaged in by the Respondents for the purpose of s.570(2)(b) of the Act are failing to comply with the Fair Work Commission orders:-
a)within the timeframe provided for in the orders;
b)when the Fair Work Ombudsman began its investigation and, again, when a fair work inspector exercised his powers under reg.5.05 of the Regulations;
c)when the Fair Work Ombudsman informed the Respondents that litigation would commence;
d)at the commencement of these proceedings;
e)on the Respondents’ default of 7 August 2017;
f)by failing to engage with the proceedings brought by the Applicant.
The Court is satisfied that the Respondents were aware of the proceedings before the Court and before the Fair Work Commission. The Respondents failed to participate in either proceeding. The Respondents’ failure to comply with the orders of Commissioner Cribb necessitated the Applicant’s application to this Court. On an objective analysis of the circumstances, the Respondents’ conduct has not been what a reasonable person would expect, and has directly caused the Applicant to incur costs. The Respondents have been put on notice as to the costs application and have provided no response for the Court to consider. The Court is satisfied that the Respondents failure to pay the amount ordered by Commission Cribb to Mr Maat was unreasonable and has caused the Applicant to incur costs.
Having been satisfied that the criteria in s.570(2)(b) of the Act has been met, the Court exercises its discretion and make a costs order in favour of the Applicant. The Court is therefore, not required to consider making an order pursuant to s.570(2)(c).
The Court is satisfied that the amount claimed by the Applicant is in accordance with Schedule 1 of the Federal Circuit Court Rules2001 (Cth).
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 10 July 2018
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