Fair Work Omsbudsman v Fimmano as Trustee for the Trustee for R & R River Trust
[2025] FedCFamC2G 1578
•26 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Omsbudsman v Fimmano as Trustee for the Trustee for R & R River Trust [2025] FedCFamC2G 1578
File number(s): ADG 16 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 26 September 2025 Catchwords: INDUSTRIAL LAW– FAIR WORK - where a compliance notice was issued to the respondents on 2 December 2022 – where the first respondent disputes the inspector’s reasonable belief under s 716(1) of the Fair Work Act 2009 (Cth) - there was no appearance of the second respondent – where the respondents dispute the underlying contravention and the qualifications of the employee – where no application under s 717 was made – where the respondents’ liability is established – declarations that the respondents contravened s 716(5) made – matter listed for a penalty hearing and procedural directions made Legislation: Fair Work Act 2009 (Cth) ss 3, 30N, 545, 716, 717
Federal Circuit and Family Court of Australia (Division 2) (General Federal law) Rules 2025 (Cth) r 22.04
Cases cited: Fair Work Ombudsman v ANSA Finance Pty Ltd [2022] FedCFamC2G 833
Fair Work Ombudsman v Darrel Crouch & Associates Pty Ltd [2023] FedCFamC2G 80
Fair Work Ombudsman v Trucking Services Pty Ltd [2021] FCCA 760
Hana Express Group Pty Ltd v Fair Work Ombudsman [2020] FCCA 54
Division: Division 2 General Federal Law Number of paragraphs: 96 Date of hearing: 4 September 2025 Place: Adelaide Counsel for the Applicant: Ms Scanlon Counsel for the Respondents: First Respondent appeared on their own behalf ORDERS
ADG 16 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: FRANCES FIMMANO AS TRUSTEE FOR THE TRUSTEE FOR R & R RIVER TRUST
First Respondent
ROCCO FIMMANO ASTRUSTEE FOR THE TRUSTEE FOR R & R RIVER TRUST
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
26 SEPTEMBER 2025
THE COURT DECLARES THAT:
A.The First Respondent contravened section 716(5) of Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the Compliance Notice issued 2 December 2022 by FWI Thammakitpairote; and
B.The Second respondent contravened section 716(5) of the FW Act by failing to comply with the Compliance Notice issued 2 December 2022 by FWI Thammakitpairote.
THE COURT ORDERS THAT:
1.Pursuant to section 545(1) of the FW Act, within 28 days of this order, the Respondents take the specified action required by the Compliance Notice by:
(a)calculating and paying to Molly Dowsett (Employee) any outstanding amounts owed in respect of the Employee’s weekday and Saturday casual hourly rates (Outstanding Amount);
(b)calculating and paying additional superannuation to the Employee’s nominated superannuation fund in respect of the Outstanding Amount;
(c)(c) producing evidence to the Applicant of the calculations and payments made pursuant to orders 3(a) and 3(b) above.
2.Pursuant to either section 545(1) or 547(2) of the FW Act, within 28 days of this order, the Respondents pay interest to the Employee on the Outstanding Amount at the applicable pre-judgment rate.
3.The matter be adjourned for a further hearing on 6 March 2026 at 9.30am (ACST NT time) in respect of the Applicant’s claim for penalties to be imposed on the First and Second Respondents pursuant to section 546(1) of the FW Act for the contraventions set out in the declaration above, estimated half a day.
4.The Applicant file and serve evidence and submissions relating to penalty no later than 28 days prior to the penalty hearing.
5.The First and Second Respondents file and serve evidence and submissions relating to penalty no later than 14 days prior to the penalty hearing.
6.The Applicant file and serve any submissions in reply relating to penalty no later than 7 days prior to the penalty hearing.
7.The parties have liberty to apply.
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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LIVERIS
Molly Dowsett worked at Pure Bliss Spa & Beauty as a beauty therapist between 2 February 2021 and 4 March 2022.
Pure Bliss is operated by the trustee for the R & R River Trust. The Trust was established on 9 July 2010. Frances Fimmano and Rocco Fimmano are co-trustees of the Trust. Ms Fimmano is the manager of Pure Bliss.
Ms Dowsett was employed by the Fimmanos as a beauty therapist on a casual basis. She worked weekdays and Saturday mornings. The Hair and Beauty Industry Award 2020 applied to and covered Ms Dowsett’s employment at Pure Bliss.
On 22 February 2022, Ms Fimmano contacted the Office of the Fair Work Ombudsman, after identifying that the Fimmanos had failed to pay Ms Dowsett the Saturday casual hourly rate, in contravention of the Award over the duration of her employment.
On 2 March 2022, around the time her employment at Pure Bliss ended, Ms Dowsett sent a request for assistance to the FWO. Shortly afterwards, the FWO commenced an investigation into Ms Dowsett’s employment with the Fimmanos. The investigation was carried out by Fair Work Inspector Jesse Thammakitpairote under the supervision of Senior Fair Work Inspector Soha Majzoub.
On 13 March 2022, Ms Dowsett sent the FWO documents including a photograph of her Diploma of Beauty Therapy, her employee separation certificate dated 9 March 2022 and 51 payslips issued between 25 February 2021 and 2 March 2022.
On 15 March 2022, Ms Fimmano spoke with FWO assessment officer Jack Foley. She provided a written statement. In the statement, Ms Fimmano asserted that Ms Dowsett was employed at Pure Bliss as a casual, level 1 beautician.[1] She said that after being employed for one year, Ms Dowsett told her that she had a Diploma of Beauty Therapy, but Ms Fimmano disputed that Ms Dowsett was employed as a Hair and Beauty Employee Level 6.[2]
[1] The Award provides classifications of Hair and Beauty Employee Levels 1 – 6. A Hair and Beauty Employee Level 1 means a receptionist or salon assistant.
[2] Under the Award, a Hair and Beauty Employee Level 6 means a beauty therapist who holds a Diploma in Beauty Therapy (or equivalent).
On the same day, the FWO sent Ms Fimmano a copy of the statement, asking her to review and confirm it as correct. Ms Fimmano was also asked by the FWO to send payslips, time books, calculations and other information that she believed was relevant to the matter. On 18 March 2022, Ms Fimmano sent the FWO a document setting out calculations of weekly and Saturday hours and pay rates, based upon payslips that she generated through Xero and sent to the Australian Taxation Office.
A compliance notice was issued to the respondents by FWI Thammakitpairote on 15 September 2022. There is little evidence of this notice. It was withdrawn on 3 November 2022. There is a suggestion in the material that was withdrawn to provide the Fimmanos with the opportunity to submit additional evidence. I am not able to resolve that matter, and nor is it necessary for me to do so. The 15 September 2022 compliance notice has no direct relevance in these proceedings, other than perhaps completing the series of factual events.
On 8 November 2022, Ms Fimmano sent FWI Thammakitpairote an email, telling him that she was going to start forwarding things to him, commencing with the first email she sent to the FWO about the underpayment of the Saturday casual rate. Ms Fimmano also sent FWI Thammakitpairote photographs of Ms Dowsett’s timesheets.
On 10 November 2022, in response to a request made by FWI Thammakitpairote, Ms Dowsett supplied the FWO with a copy of the resume she submitted to Pure Bliss Spa & Beauty, as updated to reflect her period of employment in 2021 and 2022.
On 14 November 2022, FWI Thammakitpairote completed an investigation report, in which he concluded that he held a reasonable belief that the Fimmanos contravened the Award, and recommended that a compliance notice be served upon them.
On 2 December 2022, FWI Thammakitpairote gave the Fimmanos a compliance notice under s 716(2) of the Fair Work Act 2009 (Cth).
In overview, the compliance notice required either or both of the Fimmanos to:
(a)Take the following steps by 20 January 2023:
(i)Calculate and pay outstanding amounts to Ms Dowsett in respect of contraventions failing to pay her the weekday and Saturday casual hourly rate;
(ii)Make of the amounts calculated and paid;
(iii)Calculate and pay superannuation contributions that were required to be paid to Ms Dowsett; and
(b)Produce reasonable evidence of compliance with the compliance notice to the FWO by 27 January 2023.
On 15 January 2024, the FWO commenced these proceedings against the Fimmanos. In the proceedings, the FWO alleges that the Fimmanos contravened s 716(5) of the Act, by failing to comply with the compliance notice.
The Fimmanos dispute that they have failed to comply with the compliance notice.
The Fimmanos each filed a notice of address for service on 9 May 2024, however they failed to appear on 14 May 2024 when procedural orders were made, including that they file and serve a response and defence by 11 June 2024. On 11 June 2024, Ms Fimmano filed a response and affidavit. No material was filed by Mr Fimmano.
On 25 February 2025, Judge Brown made orders in chambers listing the matter for a hearing on liability and procedural orders for the filing and serving of evidence and submissions. The FWO complied with these orders. Ms Fimmano filed and served an affidavit and submissions, however Mr Fimmano did not.
At the hearing on 4 September 2025, Ms Fimmano appeared self-represented. There was no appearance by or on behalf of Mr Fimmano. I was satisfied in all of the circumstances that Mr Fimmano was absent from the hearing, and that it was appropriate to order that the hearing proceeded generally in his absence.[3]
[3] Rule 22.04(1)(b)(i) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
Additionally, as she was self-represented, I took some time to explain the nature of the hearing and the procedure to be applied to Ms Fimmano, including her right to object to evidence, lead evidence, tender documents and notwithstanding that she did not give notice requiring the deponent to attend for cross-examination, her ability to apply to cross-examine SFWI Majzoub. The FWO made SFWI Majzoub available for cross-examination by audio-visual link if required.
After considering her position, Ms Fimmano explained that she did not require SFWI Majzoub for cross-examination and nor did she object to the tender of the court book prepared by the FWO in accordance with the orders made on 25 February 2025. Ms Fimmano also explained that she intended to lead evidence in chief in accordance with her affidavits filed on 11 June 2024 and 5 June 2025.
WHAT ARE THE ISSUES AND HOW ARE THEY TO BE DETERMINED?
During my preliminary discussions with Ms Fimmano, it was apparent that a central matter in contention is Ms Dowsett’s Diploma in Beauty Therapy. Ms Fimmano disputes the qualification, and she disputes Ms Dowsett’s competence for work at that level.
In these ways, Ms Fimmano disputes the compliance notice, because she does not accept FWI Thammakitpairote’s belief that Ms Dowsett was employed as a Hair and Beauty Employee Level 6 was reasonable. She disputes that she failed to comply with the compliance notice because she does not accept the employee level classification. Therefore, she disputes that there was any underpayment.
Against that background, the central issues that require determination are:
(a)Does s 716 of the Act apply, in that did FWI Thammakitpairote form a reasonable belief that the Fimmanos contravened the Award in the manner set out in the compliance notice?
(b)Was the compliance notice given to the Fimmanos, and does the compliance notice otherwise meet the requirements of s 716(2) and (3)?
(c)Did the Fimmanos fail to comply with the compliance notice?
(d)If the Fimmanos failed to comply with the compliance notice, do they have a reasonable excuse for not complying?
Section 716 of the Act relevantly provides:
716 Compliance notices
Application of this section
(1)This section applies if an inspector reasonably believes that a person has contravened one or more of the following:
…
(b) a term of a modern award;
…
Giving a notice
(2)The inspector may, except as provided by subsection (4), give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice:
(a)take specified action to remedy the direct effects of the contravention referred to in subsection (1) (including to calculate and pay the amount of any underpayment);
(b)produce reasonable evidence of the person’s compliance with the notice.
(3) The notice must also:
(a)set out the name of the person to whom the notice is given; and
(b)set out the name of the inspector who gave the notice; and
(c)set out brief details of the contravention; and
(d)explain that a failure to comply with the notice may contravene a civil remedy provision; and
(e)explain that the person may apply to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory Court for a review of the notice on either or both of the following grounds:
(i)the person has not committed a contravention set out in the notice;
(ii)the notice does not comply with subsection (2) or this subsection; and
(f) set out any other matters prescribed by the regulations.
…
Relationship with civil remedy provisions
(4A)An inspector must not apply for an order under Division 2 of Part 4‑1 in relation to a contravention of a civil remedy provision by a person if:
(a)the inspector has given the person a notice in relation to the contravention; and
(b) either of the following subparagraphs applies:
(i)the notice has not been withdrawn, and the person has complied with the notice;
(ii)the person has made an application under section 717 in relation to the notice that has not been completely dealt with.
Note: A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.
(4B)A person who complies with a notice in relation to a contravention of a civil remedy provision is not taken:
(a) to have admitted to contravening the provision; or
(b) to have been found to have contravened the provision.
Person must not fail to comply with notice
(5)A person must not fail to comply with a notice given under this section.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(6) Subsection (5) does not apply if the person has a reasonable excuse.
Does s 716 apply, in that did FWI Thammakitpairote form a reasonable belief that the Fimmanos contravened the Award in the manner set out in the compliance notice?
In the investigation and in these proceedings, Ms Fimmano disputed the reasonableness of FWI Thammakitpairote’s belief. A central part of this dispute was the ongoing dispute about Ms Dowsett’s Diploma. On 1 February 2023, Ms Fimmano asked the FWO to direct future communications to her lawyer. On 15 February 2023, the Fimmanos lawyer wrote to the FWO reaffirming the dispute about the qualifications held by Ms Dowsett. Subsequent emails sent took issue with the veracity of the photograph of the Diploma as the basis for the belief and suggested verification be obtained from the Academy.
In Fair Work Ombudsman v Darrell Crouch & Associates Pty Ltd,[4] Judge Lucev summarised the principles that apply to s 716(1) of the Act in the following terms:
[4] [2023] FedCfamC2G 80 at [31] – [34].
By reason of s 716(1) of the FW Act an FWI must hold a reasonable belief that an employer has contravened one of the provisions, terms or directions set out therein, and relevantly for present purposes, a provision of the NES: FW Act, s 716(1).
This Court has recently dealt with what constitutes a reasonable belief for the purposes of s 716(1) of the FW Act: see Fair Work Ombudsman v Gothic Downs Pty Ltd [2022] FedCFamC2G 21 (“Gothic Downs”) at [20]-[22] per Judge Riley; Fair Work Ombudsman v ANSA Finance Pty Ltd [2022] FedCFamC2G 833 (“ANSA Finance”) at [129] per Judge Forbes; Fair Work Ombudsman v Pacific Security Services [2021] FedCFamC2G 111 at [52]-[54] per Judge Blake, each referring to the judgment of the High Court of Australia in George v Rockett [1990] HCA 26; (1990) 170 CLR 104; (1990) 48 A Crim R 246; (1990) 64 ALJR 384; (1990) 93 ALR 483.
In ANSA Finance at [129] per Judge Forbes the Court observed that:
In determining whether or not there was a reasonable belief, is not necessary for the Court to be satisfied on the balance of probabilities that the underlying contraventions of fair work instruments have in fact occurred. The proper test is whether there was a rational basis for the Inspector’s belief based on the information available to the Inspector at the time the reasonable belief was formed.
In Gothic Downs at [21]-[22] per Judge Riley the Court observed that:
Gothic noted in its post-hearing submissions that Mr Roberts conceded in cross-examination that he did not himself calculate the shortfall in respect of Ms Kaur. Instead, Gothic argued, Mr Roberts had only relied on what Ms Kaur had said. As such, Gothic argued, Mr Roberts could not have formed a reasonable belief that Gothic had contravened a workplace law.
That submission is to misunderstand what is required for a reasonable belief. It is somewhat more than a suspicion, and it must have a rational basis, but it does not require proof on a balance of probabilities. Also, to assess whether a person had a reasonable belief requires the court to look back at the information that the relevant person had at the time that the allegedly reasonable belief was formed. That assessment is not based on any additional information that might be known at the time of the court’s assessment.
Additionally, whilst the test of reasonable belief is objective:
An Inspector is, however, required to balance the objective information available to him, and is obliged to make reasonable enquiries. Whilst the Inspector is not bound by any responses he may receive from, for example, Hana, he must take them into account in forming his view. A reasonable and balanced approach does not allow an Inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions.[5]
[5] Hana Express Group Pty Ltd v Fair Work Ombudsman [2020] FCCA 54 at [22], citing Growthbuilt Pty Ltd v WorkSafe NSW [2018] NSWIRComm 1002.
As I have set out, FWI Thammakitpairote commenced an investigation in March 2022. During the investigation, FWI Thammakitpairote obtained information from Ms Dowsett. He had a lengthy discussion with her on 23 May 2022, in response to documents that she had supplied to the FWO on 13 March 2022.
The FWO also obtained information from the Fimmanos. Ms Fimmano provided a statement on 15 March 2022. She was given the opportunity to make corrections to her statement, and she also responded to requests to supply payslips to the FWO.
Ms Fimmano has asserted that Ms Dowsett’s claim to be a Hair and Beauty Employee Level 6 is based on an untruth. She also said in oral submissions at the hearing that she feels as though nobody is listening to her.
I do not accept that is so. Ms Fimmano raised performance issues about Ms Dowsett from the commencement of the investigation. On 15 March 2022, she told FWO assessment officer Foley that Ms Dowsett’s behaviour was deplorable and abusive. On 24 August 2022, Ms Fimmano told FWI Thammakitpairote she did not think it was fair that Ms Dowsett was able to tell her on the day of a termination that she had a Diploma.
She maintained that she had seen a picture of Ms Dowsett’s Diploma, but did not accept this as genuine. She said that she terminated Ms Dowsett’s employment for the terrible work she did as a beauty therapist. On 8 November 2022, Ms Fimmano questioned Ms Dowsett’s lack of skills against someone who holds a Diploma. In these circumstances, I do not accept Ms Fimmano’s criticism that nobody is listening to her.
Based on the information collected in the investigation, FWI Thammakitpairote identified that Ms Dowsett’s classification level is one of the main disputes held by the parties. He went on to identify the contradictions in Ms Fimmano’s position, where she asserted that Ms Dowsett told her about her qualification on the day of termination, but also asserted that she became aware of the Diploma during the period of employment but did not accept a picture of it as genuine.
FWI Thammakitpairote formed a belief that Ms Fimmano was at least aware of Ms Dowsett’s alleged Diploma during the employment period. FWI Thammakitpairote sighted the picture of the Diploma dated 29 May 2017. He investigated the institution, Heather Langton Academy of Beauty Therapy. FWI Thammakitpairote identified that the Academy was a registered training organisation under the Australian Qualifications Framework.
Whilst FWI Thammakitpairote researched Heather Langton Academy of Beauty Therapy, he did not obtain confirmation from the institution to verify Ms Dowsett’s qualifications from its records. Ms Fimmano has submitted that in these circumstances, FWI Thammakitpairote’s belief that the Fimmanos had contravened the Award is not reasonable.
Ms Fimmano also asserts that having allegedly worked as a beauty therapist at Endota Spa between 2019 and 2021 before she started employment at Pure Bliss Spa & Beauty, Ms Dowsett never raised complaints about her rate of remuneration, notwithstanding that she signed her time books every day. Ms Fimmano effectively says that if she was being underpaid, it should have been obvious to Ms Dowsett based upon what she was earning in the same role at Endota.
As the authorities explain, a reasonable belief does not require proof on the balance of probabilities. What is required is more than a suspicion and it must have a rational basis. I am required to look at the information available to FWI Thammakitpairote at the time he formed his belief. In this respect, FWI Thammakitpairote’s memorandum setting out his analysis and conclusions is insightful.
In my assessment, the belief formed by FWI Thammakitpairote that Ms Fimmano was aware that Ms Dowsett claimed to hold a Diploma during the employment, and that Ms Dowsett had obtained the Diploma before the employment commenced, was reasonable, when measured against the required standard.
I appreciate that Ms Fimmano’s scepticism and mistrust runs very deeply. At the hearing, it is clear that she continues to not believe Ms Dowsett holds a Diploma and that the investigation and proceedings are founded on mistruths. The extent of the allegations between the parties, including Ms Fimmano’s allegations against Ms Dowsett of not only incompetence, but also defamation and intellectual property theft, reinforce the extent of the breakdown in the relationship.
However, I consider that FWI Thammakitpairote’s belief was reasonably held because the belief was formed after a balanced and thorough investigation, during which he made reasonable and necessary enquiries of both Ms Dowsett and the Fimmanos. He obtained relevant information and documents and tested competing positions against objective evidence. He took steps to resolve factual disputes through independent enquiries and took those matters into account in reaching his conclusions.
There is little evidence of why FWI Thammakitpairote did not obtain independent verification of Ms Dowsett’s qualifications from Heather Langton Academy of Beauty Therapy. In an email sent by the Fimmanos’ lawyers on 15 February 2023, it was said that neither the FWO nor Ms Dowsett had supplied the Fimmanos with evidence of Ms Dowsett’s qualifications.
On 3 March 2023, the Fimmanos lawyer took issue with the reasonableness of the FWOs belief based on a photograph of Ms Dowsett’s Diploma. It was suggested that the FWO had not complied with its obligation to assess the reliability of evidence before it and supporting any findings, or views as to the contravention of the Award. The correspondence concluded by putting the FWO on notice as to the unreliability of the evidence.
On 6 March 2023, the FWO wrote to the Fimmanos’ lawyer saying that his submission had been taken into account, and the evidence supplied about the qualification was considered reliable and sufficient to base a reasonable belief.
To that end, FWI Thammakitpairote’s memorandum shows that he was satisfied by sighting an image of the Diploma and his investigations about the Academy. That evidence is clearly not satisfactory to Ms Fimmano, but that is not the relevant enquiry.
FWI Thammakitpairote tested the validity of assumptions made. He took into account the views expressed by Ms Fimmano. He took into account Ms Fimmano’s allegation that Ms Dowsett was dismissed due to rude and impertinent behaviour, and her claim that Ms Dowsett did not raise a rate of pay, or the Diploma, until after she was dismissed. FWI Thammakitpairote also considered Ms Fimmano’s claim that Ms Dowsett was taught a lot of skills at Pure Bliss Spa & Beauty, including skills that a person with a Diploma should know.
Having reached the conclusions he did about Ms Dowsett’s qualifications and satisfying himself of the threshold issues, FWI Thammakitpairote went on to assess the alleged contraventions. Having done so, FWI Thammakitpairote concluded that he held a reasonable belief that the Fimmanos contravened the Award by failing to pay Ms Dowsett the weekday and Saturday casual hourly rate for the times and terms alleged.
On the information obtained in the investigation, I am satisfied that there was a rational basis for FWI Thammakitpairote’s belief that the Fimmanos had contravened terms of the Award as set out in the investigation report and the compliance notice. The assessment was an orthodox, thorough and critical analysis of the facts and issues.
Additionally, notwithstanding the strength of the submissions made in the emails sent by their lawyer, the Fimmanos did not apply to a court for review of the compliance notice on the ground that they had not committed a contravention set out in the notice (or on the basis that the notice does not comply with s 716(2)).
Was the compliance notice given to the Fimmanos, and does the compliance notice otherwise meet the requirements of s 716(2) and (3)?
Ms Fimmano agreed with the FWO’s pleading in the statement of claim that FWI Thammakitpairote gave the Fimmanos the compliance notice pursuant to s 716(2) of the Act. She agreed that the compliance notice was sent to the Fimmanos separately via pre-paid post on 2 December 2022 to Pure Bliss Spa & Beauty at the business address of Shop 9, Phoenix Plaza, corner Carlton Road and High Street, Gawler, South Australia 5118.[6] the compliance notice was also sent to the FImmanos by email on 2 December 2022.
[6] See paragraph 11 of the statement of claim and paragraph 11 of Ms Fimmano’s affidavit dated 11 June 2024.
In her affidavit dated 11 June 2024, Ms Fimmano took issue with Mr Fimmano being a trustee of the Trust, and a joint and several employer, stating that Ms Dowsett never worked for him. She reiterated that assertion in her affidavit dated 5 June 2025. She also gave evidence suggesting that the employer was Pure Bliss Spa & Beauty, and not the trustees of the Trust.
I do not accept that evidence. Additionally, in cross-examination, Ms Fimmano was taken to the company extract for Pure Bliss Spa & Beauty, and accepted that Mr Fimmano is a co-trustee with herself.
Apart from these matters, I am satisfied that the Trust is a discretionary investment trust that trades as Pure Bliss Spa & Beauty from Shop 9, Phoenix Plaza, corner Carlton Road and High Street, Gawler, South Australia 5118.
I am satisfied that the Fimmanos were the co-trustees of the Trust, and were jointly and severally national system employers, within the meaning of s 30N of the Act, and liable for the obligations incurred by the Trust in respect of the employment of employees.
I am also satisfied that service of the compliance notice was validly effected upon each of the Fimmanos, and that the compliance notices were, in each case, given for the purpose of s 716(2) of the Act. In her affidavit made on 5 June 2025, Ms Fimmano gave evidence that she received the compliance notice by express post, but suggested that Mr Fimmano did not, asserting again that he has no involvement in Pure Bliss Spa & Beauty. As I have set out, that is not the case, at least as a matter of law.
Further, as I have already observed, Ms Fimmano was in communications with the FWO after the compliance notice was given and both of the Fimmanos were at a time represented by a lawyer in relation to the compliance notice. Those communications collectively acknowledged that the compliance notice was given.
I am also satisfied, on the face of the compliance notice, that it complies with the requirements of s 716(2) and (3).
The compliance notice relevantly:
(a)Sets out the name of the person to whom the notice is given, by setting out the respondent’s names, in their capacity as the trustees for the Trust;
(b)Sets out the name of the inspector who gave the notice, being FWI Thammakitpairote, a duly appointed FWI;
(c)Sets out the brief details of the contravention. The compliance notice asserts that the Trust employed Ms Dowsett on a casual basis as a Hair and Beauty Employee Level 6. It sets out the relevant clauses of the Award that applied, the time periods in which they applied, and the specific details of the contraventions;
(d)Explains that a failure to comply with the compliance notice may contravene a civil remedy provision, and render the Fimmanos liable for a civil penalty, unless they have a reasonable excuse, under s 716(5) and (6) of the Act;
(e)Explained that the Fimmanos may apply to the Federal Court, this Court, or an eligible state or territory court, for review of the notice, on either or both of the grounds that they did not commit the contraventions set out in the notice, and/or that the compliance notice does not comply with s 716(2) or (3).
The compliance notice also made clear to the Fimmanos that complying with the compliance notice is not an admission that they contravened, or have been found to have contravened, the Award or the Act.
The compliance notice set out the action that was required under the notice. It required the Fimmanos to effectively take three steps - first, to calculate and rectify the underpayments by 20 January 2023, second to calculate and pay any additional superannuation contributions required under the Award by 20 January 2023 and third, to provide reasonable evidence of the steps taken to comply with the compliance notice in the form of the schedule that sets out the underpayment rectification information and additional superannuation contributions, and proof of payment to Ms Dowsett and her Superannuation Fund by 27 January 2023.
I am satisfied that the compliance notice complied with s 716(2) of the Act, and that the timeframes were reasonable. During this period, it is evident that the Fimmanos instructed a lawyer, informed the FWO of that fact on 12 January 2023, and explained that their lawyers would contact the FWO.
In submissions at the hearing, Ms Fimmano referred to a period of ill health. She gave evidence in her affidavit of 5 June 2025 that, in a very general sense, she was going through ill health and told the FWO that she was not coping, and was not in a mental or physical state to deal with things. She said that she put that in writing, but considered she was still “hounded” by the FWO.
In cross-examination, Ms Fimmano said that she instructed a lawyer after she received the compliance notice because of her health. It is clear that the lawyer put the Fimmanos’ position about the compliance notice squarely to the FWO including as I have observed, reserving rights. No issue was taken about the time for the steps required in the compliance notice being unreasonable. The focus of the dispute was on the underlying contraventions and allegations.
Despite being legally represented, and notwithstanding the general evidence of her ill-health and hospitalisation, no application was made to a court by Ms or Mr Fimmano.
I am satisfied that the compliance notice complies with s 716(2) and (3).
Did the Fimmanos fail to comply with the compliance notice?
At the hearing, Ms Fimmano disputed that the Fimmanos failed to comply with the compliance notice. She asserted that she did comply.
In submissions, Ms Fimmano was concerned to reiterate that she did not agree with the compliance notice, and FWI Thammakitpairote’s belief that the Fimmanos had contravened the Award.
She was concerned that she could not comply, because she did not accept the contraventions asserted, that one leads to the other and it would be saying that she did something wrong. That position is misguided. As I have set out, then legally represented, the Fimmanos did not take any steps to review the notice in a court.
Further, compliance with the compliance notice is not taken as an admission. That was clearly set out in the compliance notice itself. In Fair Work Ombudsman v Trucking Services Pty Ltd,[7] Judge Jarrett said:
The power of a Fair Work Inspector to issue a compliance notice was introduced into the Fair Work Act to provide a mechanism for dealing with non-compliance with minimum entitlements in the Fair Work Act, as an alternative to commencing litigation for each underlying contravention. Compliance notices provide a mechanism for the efficient and cost-effective rectification of identified contraventions of the Fair Work Act, including underpayments to employees. If the respondent had complied with the compliance notice issued in this case:
(a) the applicant would have been prevented from bringing civil remedy proceedings against it in respect of the underlying contraventions pursuant to s.716(4A) of the Fair Work Act; and
(b) it would not be taken to have admitted or contravened the civil remedy provisions in respect of the underlying contraventions pursuant to s.716(4B) of the Fair Work Act.
[7] [2021] FCCA 760 at [8]
In cross-examination, Ms Fimmano was taken to the compliance notice and the steps that she was required to take. She acknowledged her awareness of those steps. She said that she identified the hours and completed the calculations in paragraph 8(a)(i)(iii) and (c), but that she did not pay Ms Dowsett because there was no underpayment.
Ms Fimmano’s evidence given in cross-examination again goes to the core of the dispute, that she does not accept Ms Dowsett’s entitlements as a Hair and Beauty Employee Level 6. She said that when she received the compliance notice asserting that Ms Dowsett was employed as a Hair and Beauty Employee Level 6, she considered it was unjust, because the allegation was based on information that she did not agree with.
When asked whether it felt unjust to her to pay Ms Dowsett, Ms Fimmano said that Ms Dowsett was paid correctly to what she contributed to the salon. She said that it was:
Unjust to find me guilty of something based on somebody else’s work. I have shown photos of her poor work. If she had a Diploma, I would question who gave it to her.
I accept that Ms Fimmano provided documentation to the FWO in response to correspondence and requests, at times preceding the compliance notice being issued. But this is not compliance with the compliance notice.
Further, the FWO communicated with the Fimmanos about their non-compliance, and sent them notifications. These included an email on 3 January 2023 from the FWO, reminding them of their obligation to complete the steps in compliance with the notice by 20 January 2023, and sending them a letter providing additional details on how to comply, together with frequently asked questions.
It also included a letter dated 1 February 2023, formally notifying them of their failure to comply with a compliance notice, and amongst other things, requiring them to advise the FWO within seven days if they had a reasonable excuse for not complying with a compliance notice. The letter was sent to the Fimmanos by email.
Later the same day, Ms Fimmano wrote an email to the FWO stating that she had provided the Fimmanos lawyers with the documentation, and asking that all future correspondence be directed to their lawyer.
In the weeks that followed, the Fimmanos lawyer communicated with the FWO, and the FWO asked their lawyer for updates about progress toward compliance. It is clear from that correspondence that the dispute about Ms Dowsett’s Diploma was a central feature, and that the Fimmanos did not comply with a compliance notice, notwithstanding the effect of s 716(4B). Nor did the Fimmanos commence proceedings to review the compliance notice.
On 21 March 2023, the FWO sent the Fimmanos an email, providing a last opportunity to comply with a compliance notice. The email also stated that due to non-compliance, the matter will be referred for legal consideration, if compliance is not made by 24 March 2023. It said that upon compliance, the matter would be closed.
I have taken into account Ms Fimmano’s evidence and submissions about her belief that she complied with a compliance notice, but I do not accept those matters. I also do not accept Ms Fimmano’s evidence that the FWO’s manner of communicating and corresponding with the Fimmanos, including after the referral for the commencement of legal proceedings, are of a nature to bully or intimidate the Fimmanos into agreeing with the FWO’s position.
In my assessment, the Fimmanos have clearly not complied with the compliance notice. I accept that their non-compliance involves an element of wilfulness. They have not complied because they do not accept Ms Dowsett’s Diploma. Ms Fimmano’s defence in these proceedings has included an attack on Ms Dowsett’s competence, and raised the question of her qualifications in that context.
Ms Fimmano’s affidavit evidence goes into some detail about the circumstances in which Ms Dowsett left Pure Bliss Spa & Beauty. The evidence speaks to the depth of acrimony between the parties, including not only allegations of incompetence against Ms Dowsett, but also allegations of defamation and intellectual property theft.
Many of those matters are not relevant to the questions in need of determination. However, Ms Fimmano has also raised the question of Ms Dowsett signing her time books every day and “question why it would take Molly 13 months to decide she was underpaid …”, the implication further being that Ms Dowsett did not have Hair and Beauty Employee Level 6 credentials.
I do not accept that submission by Ms Fimmano. The objects of the Act, at s 3, include to provide a balanced framework for co-operative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions, through the National Employment Standards, modern awards and national minimum wage orders.
The issue is not whether Ms Dowsett should have picked up that she might not have been paid her full entitlements. I interpret Ms Fimmano’s submission on this point as being in line with her cynicism about Ms Dowsett’s qualification, and her ongoing failure to accept it.
However, the submission misses the point about the susceptibility of people to unfair and unlawful workplace practices, and the objects of the Act.
If the Fimmanos failed to comply with the compliance notice do they have a reasonable excuse for not complying?
In Fair Work Ombudsman v ANSA Finance Pty Ltd,[8] Judge Forbes relevantly observed:
An employer who seeks to rely on the exception of “reasonable excuse” bears the onus of proof. The excuse proffered must be one which would be regarded as reasonable by a reasonable person in the relevant circumstances. It is a matter to be determined objectively by the Court having regard to all the evidence.
The Court’s consideration of whether there is a “reasonable excuse” is properly directed to the steps required to be taken under the compliance notice. It is not an enquiry into whether the alleged substantive contravention of fair work instruments has been made out by the Ombudsman or whether the respondents have a proper basis to contest the Inspector’s reasonable belief. The relevant question is whether objectively the respondent had a reasonable excuse for not doing what the compliance notice required it to do.
The Ombudsman submits that under the statutory scheme any legal or merit challenge to the validity of a compliance notice should be made by way of an application for review under s 717 of the Act. Counsel for the Ombudsman likened that to an avenue for judicial review that would normally be available in relation to administrative decisions. There is some force in this submission.
The thrust of the Ombudsman’s submission is that the statutory compliance scheme can be likened to the framework around other summary statutory infringements such as parking or traffic fines. In like situations a person who receives an infringement notice usually faces a binary choice - either comply with the notice or challenge the basis of it by initiating some kind of judicial review. If review is not sought, the infringement notice presumptively stands as a valid instrument and requires the recipient to take the steps required by the notice. So too it is with a compliance notice under the FW Act. In the absence of an application for review pursuant to s 717, the recipient is required to take the steps specified in the notice unless it has a “reasonable excuse”.
In my view it is implicit from the text of the legislative scheme that a disagreement with the alleged substantive contravention[9] or the form of the notice[10] does not constitute a reasonable excuse unless an application for review has been made. If an application for review is made the Court has power to stay its operation on terms it considers appropriate. Parliament cannot have intended that an employer’s disagreement with a notice, without more, could nullify the operation of s 716(5).
In my view the question for the Court is whether Ansa Finance can establish a reasonable excuse for not being able to do the things that the Compliance Notices required it to do. It is a question properly directed to the recipient’s capacity or ability, rather than its will.
…
Depending on the circumstances, it is conceivable that the health of a person responsible for compliance might constitute a reasonable excuse for non-compliance.
[8] [2022] FedCFamC2G 833 at [147] – [153].
[9] s 716(3)(e)(i) and s 717(1)(a)
[10] s 716(3)(e)(ii) and s 717(1)(b)
The Fimmanos have not pleaded any reasonable excuse, and the overriding emphasis of Ms Fimmano’s evidence and submissions has been directed to her disagreement with Ms Dowsett’s qualifications, on a multifaceted basis.
Ms Fimmano’s submissions have been that she did comply with a compliance notice in terms that she accepted it to be (that is on a basis other than a Hair and Beauty Employee Level 6, resulting in no over payment). That is not a reasonable excuse for not complying with a compliance notice.
As ANSA Finance makes plain, it is clear from the terms of the FWA that disagreement with the alleged substantive contravention does not constitute a reasonable excuse unless an application for review has been made. An employer’s disagreement with a notice, without more, does not nullify the operation of s 716(5).
Further, I have already assessed the evidence regarding Ms Fimmano’s health, as it is generally expressed. To the extent that Ms Fimmano’s health issues might bear upon the question of whether she had a reasonable excuse for not complying with a compliance notice, I do not accept the evidence establishes such a reasonable excuse.
I accept the FWO’s submissions that the appropriate step to take, where the recipient of a compliance notice wants to contest the underlying contraventions, is to make an application under s 717 of the Act to review the compliance notice, including seeking a stay.
The Fimmaos did not take such a step. There is no evidence that they were unable to do so. Instead, and including with legal representation, and being made aware of their rights, the Fimmanos chose to not comply with the compliance notice, at the same time as electing to not exercise their rights to contest the notice in a court.
In my assessment, the Fimmanos do not have a reasonable excuse for not complying with a compliance notice.
WHAT ORDERS SHOULD BE MADE?
Based upon my analysis and findings, in my view it is appropriate to make the declarations sought by the FWO against the Fimmanos.
I will also order, under s 545(1) of the Act, that the Fimmanos take the steps they were required to under the compliance notice within 28 days.
In the circumstances, I will adjourn the proceedings for further hearing in respect of the FWO’s application for penalties to be imposed on the Fimmanos. I will make procedural orders giving effect to the hearing as to penalty and other orders.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 26 September 2025
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