Fair Work Ombudsman v Yesilbas (No 2)

Case [2025] FedCFamC2G 562

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Fair Work Ombudsman v Yesilbas (No 2) [2025] FedCFamC2G 562

File number(s): MLG 3290 of 2024
Judgment of: JUDGE O'SULLIVAN
Date of judgment: 16 April 2025
Catchwords: INDUSTRIAL LAW – application for civil penalty –admitted contraventions –failure to abide by compliance notice and provide pay slips under Fair Work Act 2009 (Cth) – penalty hearing – appropriate penalty.
Legislation:

Fair Work Act 2009 (Cth) ss 536, 546, 716

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.06

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (‘CFMEU’) (2018) 262 CLR 157

Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13

Australian Building and Construction Commissioner v J Hutchinson Pty Ltd T/A Hutchinson Builders [2019] FCA 667

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482

Fair Work Ombudsman v AJR Nominees Pty Ltd (No 2) [2014] FCA 128
Fair Work Ombudsman v Blu Hornsby Pty Ltd [2016] FCCA 1150

Fair Work Ombudsman v Extrados Solutions Pty Ltd [2014] FCCA 815

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] 275 IR 148

Fair Work Ombudsman v T & Sons Pty Ltd & Anor [2020] FCCA 3519
Fair Work Ombudsman v Touchpoint Media Pty Ltd & Anor [2018] FCCA 2615

Fair Work Ombudsman v Yesilbas [2024] FedCFamC2G 1212

Fair Work Ombudsman v Yogurberry World Square [2016] FCA 1290

Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317

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

Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70

Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65

Division: Division 2 General Federal Law
Number of paragraphs: 52
Date of last submission/s: 16 April 2025
Date of hearing: 16 April 2025
Place: Melbourne
Solicitor for the Applicant: Ms S Vassallo
Solicitor for the Respondent: No appearance by the Respondent

ORDERS

MLG 3290 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FAIR WORK OMBUDSMAN

Applicant
AND:

TAMER YESILBAS

Respondent

ORDER MADE BY:

JUDGE O'SULLIVAN

DATE OF ORDER:

16 APRIL 2025

THE COURT ORDERS THAT:

1.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) the respondent pay a total pecuniary penalty of $ 8,667 for the contraventions set out in paragraph 1 of the orders dated 14 February 2025;

2.The Applicant have liberty to apply on seven days’ notice in the event that the preceding order is not complied with.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to…

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AGLC
Fair Work Ombudsman v Yesilbas (No 2) [2025] FedCFamC2G 562
Case
[2025] FedCFamC2G 562
Decision Date

CaseChat Overview and Summary

The Fair Work Ombudsman (the applicant) commenced proceedings against Tamer Yesilbas (the respondent) for contraventions of the Fair Work Act 2009 (Cth). The applicant sought declarations that the respondent had contravened sections 716 and 536 of the FW Act. The proceedings were initiated after an investigation into underpayment of a former employee at the respondent's bar, The Dock Lounge in Docklands, Victoria. After the applicant encountered difficulties serving the respondent personally, the court granted an order dispensing with the requirement for personal service. The applicant filed an application for default judgment, which was subsequently overtaken by the parties agreeing on a statement of agreed facts and a consent minute for the contraventions.

The court had to determine the appropriate penalties for the admitted contraventions of sections 716 and 536 of the FW Act. The court considered the maximum penalties for each contravention, the nature of the breaches, and the deliberateness of the respondent's actions. The court also took into account the respondent's failure to comply with a compliance notice and provide pay slips, which resulted in the employee being unable to monitor her wages and entitlements. The court concluded that a penalty at the lower end of the prescribed range was appropriate given the circumstances of the case.

In reaching its decision, the court considered the relevant statutory factors and the principles set out in Pattinson. The court found that the penalties proposed by the applicant were appropriate and not crushing or oppressive. The court ordered that the respondent pay a penalty of $5,071 for the contravention of section 716 and $3,596 for the contravention of section 536. The court noted that the penalties reflected an appropriate response to the offending conduct and were proportionate to the gravity of the breaches.

Orders

Orders of the court

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Background

Background to the litigation

Before the Court are proceedings for the imposition of penalties for contraventions of the Fair Work Act 2009 (Cth) (“FW Act”). BACKGROUND On 30 September 2024 the Fair Work Ombudsman (‘the applicant’) commenced proceedings against Tamer Yesilbas (‘the respondent’). In its statement of claim the applicant sought declarations that the respondent had contravened s 716 and s 536 of the FW Act. The proceedings were initiated against the background of the applicant’s investigation (and then the issue in July 2023 of a compliance notice to the respondent) arising from concerns a former employee at the respondent’s bar, trading as The Dock Lounge in Docklands, Victoria (which has since closed) had been underpaid. After the proceedings had been filed the applicant encountered difficulties personally serving the respondent in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘GFL Rules”). As a result, the applicant filed an application in a proceeding on 7 November 2024 seeking orders dispensing with the requirement for personal service on the respondent. On 13 November 2024, and for the reasons set out in Fair Work Ombudsman v Yesilbas [2024] FedCFamC2G 1212, the following orders were made:1.Pursuant to Rule 6.06(2)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the Rules’), the requirement for personal service pursuant to Rule 6.06(1) on the Respondent of the following documents be dispensed with:(a) the Application filed in this proceeding on 30 September 2024; and(b) the Statement of Claim filed in this proceeding on 30 September 2024.2.Service of the Application and Statement of Claim both filed on 30 September 2024 is taken to have been effected on the Respondent pursuant to rule 6.14(3) of the Rules by way of the email sent to the Respondent at etagproman@hotmail.com on 2 October 2024.3.Until further order or until the Respondent gives an address for service, service of any further documents filed in this proceeding is to be effected on the Respondent pursuant to rule 6.14(2) of the Rules by emailing the documents to etagproman@hotmail.com.4.The Respondent file and serve a Notice of Address for Service by 22 November 2024.5.The Respondent file and serve any Response and Defence by 13 December 2024.6.The Applicant file and serve any Reply by 20 December 2024.7.The proceeding be adjourned for directions in the Federal Circuit and Family Court of Australia at Melbourne on 14 February 2025 at 10.30 am.8.The parties have liberty to apply. Whilst the applicant filed an application in a proceeding for default judgment on 4 February 2025 the need to deal with that application was overtaken by events. On 13 February 2025 the applicant and respondent advised the Court they had signed and would file, the following day, a statement of agreed facts and a consent minute seeking declarations that the respondent had contravened s 716 and s 536.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no evidence that suggests that penalties within the proposed range/s would be crushing or oppressive.CONCLUSION I have taken into account the material before the Court in the context of the above-mentioned relevant considerations and am satisfied in each case a penalty at the lower end of the range is appropriate. In all the circumstances a penalty on the respondent of $5,071 for the contravention of s 716 and $3,596 for the contravention of s.536 reflects an appropriate response to the offending conduct. Accordingly, there will be orders as set out at the beginning of these reasons for decision.

Ratio Decidendi

Legal Principle Established

The Court may take into consideration matters relevant to both the character of the contravening conduct and of the contravenor.[4] The Court's task is, and remains to be, the determination of what penalty is most appropriate given all the relevant circumstances of the case.[5]’[4] Pattinson at [19].[5] Pattinson at [68].CONSIDERATION It is now convenient to turn to an analysis of the relevant considerations. Before doing so I note the contraventions have been referred to earlier and the background is in statement of agreed facts at Annexure A. I accept, for the reasons referred to in the applicant’s submissions, that in this case the maximum penalty that the Court may impose for a contravention of s 716(5) of the FW Act is $9,390 for an individual and for a contravention of s 536(1) of the FW Act $13,320 for an individual. I also accept that the Compliance Notice Contravention and the Pay Slip Contravention concern different conduct and are to be treated as separate and distinct when the Court considers an appropriate penalty before deciding overall if the penalty arrived at is an appropriate response to the impugned conduct. Course of conduct The applicant’s written submissions correctly addressed this consideration at paragraph [21] noting given the nature of the contraventions in this matter there was no role for the statutory course of conduct or relevant overlap.The nature, circumstances and deliberateness of the breaches The applicant’s submissions addressed these considerations at paragraphs [33] to [42]. The statement of agreed facts records the detail of the contraventions. The respondent’s contraventions occurred in circumstances where:36.The Respondent was given the Compliance Notice on 26 July 2023 by post to the Respondent’s residential address. On 10 August 2023 (within the period for compliance), Steven Tokic from the FWO’s Notice Assistance Team spoke to the Respondent via telephone and the Respondent said that he was aware of the Compliance Notice and would “do what is required”. The Respondent was therefore aware of the Compliance Notice and the obligation to comply with it, including that a failure to comply may lead to the Applicant commencing proceedings to seek civil penalties and orders for compliance. Notwithstanding this, the Respondent failed to comply with the Compliance Notice.37.The Respondent was provided with further opportunities to rectify his non-compliance with the Compliance Notice following correspondence from the Applicant, including on 6 September 2024, 16 May 2024, 20 June 2024 (when he was also provided with calculations performed by the OFWO which indicated that the amount payable under the Compliance Notice was $3,932.04), 24 June 2024, 28 June 2024, 9 and 22 July 2024, 13 and 29 August 2024, and 2 September 2024.38. Despite these repeated opportunities, it was only following the commencement of these proceedings that the Respondent took some of the actions required of him under the Compliance Notice.39. The Respondent’s conduct in failing to comply with the Compliance Notice demonstrates a deliberate disregard for his obligations under the FW Act, the authority of the Applicant as a regulator of Commonwealth workplace laws, and a contempt for the laws put in place to safeguard the entitlements of employees.40. In the circumstances set out above, the Applicant submits that the Respondent’s failure to comply with the Compliance Notice was deliberate and that a meaningful penalty should be imposed.[…]42. As a result of the Respondent’s failure to provide the pay slip, the Employee was denied the opportunity to monitor her wages and ensure that she was being paid correctly, and to quantify any underpayments. The importance of the Employee having the ability to monitor whether she has received her lawful entitlements is heightened in circumstances where a compliance notice was issued for alleged contraventions of the Restaurant Award in relation to her employment.The nature and extent of any loss or damage sustained as a result of the breaches