Freeman v Kelyon Pty Ltd and anor (Penalty)
[2025] VMC 13
•24 July 2025
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
INDUSTRIAL DIVISION
Case No. MAG-CI-240222886
| CELESTE RUBY-MARIE FREEMAN | Plaintiff |
| and | |
| KELYON PTY LTD (ACN 618 741 674) AS TRUSTEE FOR KELYON FAMILY TRUST | First Defendant |
| and | |
| JASON THOMAS O’LOUGHLIN | Second Defendant |
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| MAGISTRATE: | K Fawcett |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined based on written material filed 29 January 2025, 6 February 2025, 12 March 2025, 13 May 2025, 14 May 2025. |
| DATE OF DECISION: | 24 July 2025 |
| CASE MAY BE CITED AS: | Freeman v Kelyon Pty Ltd and anor (Penalty) |
| MEDIUM NEUTRAL CITATION: | [2025] VMC 13 |
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INDUSTRIAL LAW – Fair Work Act 2009 (Cth) ss 45, 546(1), 546(3), 550, 557 – Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2020 rr 1.6, 13.01, 13.02, 13.03, 13.04, Form 13D – Magistrates' Court General Civil Procedure Rules 2020 r 43.03 – Evidentiary requirements for an order in default – Pecuniary penalties – Order for payment of penalties to a third party.
APPEARANCES: | SOLICITORS |
| For the Plaintiff | Kelly Thomas, Young Workers Centre |
| For the Defendants | No appearance |
HER HONOUR:
BACKGROUND
This claim relates to the Plaintiff’s former employment with the First Defendant at the Monkey Bean Café in Toorak. The Plaintiff claims she was underpaid the sum of $31,515.81 comprising unpaid wages, penalty rates, overtime and superannuation (Underpayment Claim) and seeks the imposition of pecuniary penalties against both Defendants (Penalty Claim) pursuant to the Fair Work Act 2009 (Cth) (Act).
No defence was filed by either Defendant. On 13 January 2025 the Plaintiff made an application for an order in default under r 13.04 of the Magistrates’ Court (Miscellaneous Civil Proceedings) Rules 2020 (Miscellaneous Rules). On 30 January 2025 I granted that application and made an order that the First Defendant pay the Plaintiff the Underpayment Claim plus interest. This decision concerns the Penalty Claim.
On 6 February 2025, the Plaintiff filed proposed orders for declarations and penalties. On 12 February 2025 I made directions that each Defendant be personally served with relevant documents, and for the filing of affidavits and submissions by both parties. On 13 March 2025 I granted the Plaintiff’s application for substituted service on the Second Defendant. On 23 April 2025 I made further directions for the filing and service of affidavits and submissions. I directed the Defendants to advise the Court if they sought to have an oral hearing in the matter, and that absent this, the matter would be determined without an oral hearing.
Pursuant to these directions, the Plaintiff filed an outline of submissions dated 12 March 2025 (First Outline), a further outline of submissions dated 14 May 2025 (Second Outline) as well as further affidavits. The Plaintiff relies on her affidavits of 29 January 2025 (First Plaintiff Affidavit) and 13 May 2025 (Second Plaintiff Affidavit) and the affidavits of Alessandra Galetti dated 29 January 2025 (First Galetti Affidavit) and 13 May 2025 (Second Galetti Affidavit). The Plaintiff also filed four affidavits of service of Alessandra Galetti, two dated 17 March 2025 and two dated 16 May 2025, based on which I am satisfied that the Defendants have both been served with all relevant documents.
The Defendants have not filed any material in response to my directions and have not advised the Court that they seek an oral hearing in the matter. Accordingly, I have determined the matter without an oral hearing.
RELEVANT PROVISIONS OF THE ACT
The Penalty Claim is made pursuant to s 546(1) of the Act, which provides (relevantly):
…[A]n eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
The Second Defendant’s claimed liability is based on s 550 of the Act, which provides:
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. [note omitted]
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
a.has aided, abetted, counselled or procured the contravention; or
b.has induced the contravention, whether by threats or promises or otherwise; or
c.has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
d.has conspired with others to effect the contravention.
I am satisfied that this Court, an eligible State or Territory Court pursuant to s 12 of the Act, has jurisdiction to order a person to pay a pecuniary penalty, including a person taken to have contravened a civil remedy provision pursuant to s 550 of the Act.[1]
[1]In Milford-Behn v Roberts [2021] SAET 174, referred to by the Plaintiff, the South Australian Employment Tribunal rejected an argument that an eligible State or Territory Court could not order penalties against a person involved in a contravention within the meaning of s 550 of the Act.
EVIDENTIARY REQUIREMENTS
Order 13 of the Miscellaneous Rules applies to the commencement, hearing and determination of a proceeding in the Industrial Division of the Court.[2] Rule 13.02 provides for a proceeding to be commenced by a Form 13A complaint. Rule 13.03 requires (in the circumstances of this matter) a Defendant to give a notice of response containing the information set out in Form 13B not less than 14 days after service of the complaint. Rule 13.04 governs the procedure for obtaining an order in default of the filing of a notice of response by a Defendant, as follows:
[2]Miscellaneous Rules, r 13.01.
13.04 Plaintiff may apply for order
(1)If a defendant does not give notice of a response in accordance with Rule 13.03 after the service of a complaint …, the plaintiff may apply for an order.
(2) An application under paragraph (1) must—
(a) contain the information set out in Form 13C; and(b)be accompanied by an affidavit in support which must contain the information set out in Form 13D.
Form 13D requires, amongst other things, that the Plaintiff verify by affidavit the amount of the claim, the basis on which it is calculated, and that the amount remains outstanding.[3] Further, the Plaintiff is required to verify any other relief sought in the following terms:
Any other relief sought and the basis on which it is sought is as follows: (specify any other relief sought and set out all material facts on which you rely in support).[4]
[3]Ibid, Form 13D, [4]. The First Plaintiff Affidavit verified these matters.
[4]Ibid, [6].
I consider an order for pecuniary penalties to be ‘other relief’ as described in Form 13D. Accordingly, to obtain a pecuniary penalty order utilising the default procedure in r 13.04, the Plaintiff must verify by affidavit all of the material facts relied on.
The Magistrates' Court General Civil Procedure Rules 2020 (GeneralRules) also have application to an Industrial Division proceeding, so far as practicable, unless otherwise provided for in the Miscellaneous Rules or any Act.[5] Rule 43.03 provides as follows:
43.03 Content of affidavit
(1)Except where otherwise provided by or under these Rules an affidavit must be confined to facts which the deponent is able to state of the deponent's own knowledge.
(2)In an interlocutory application in a proceeding an affidavit may contain a statement of fact based on information and belief if the grounds are set out in the affidavit.
[5]Miscellaneous Rules, r 1.06.
I do not consider the present application an ‘interlocutory application’ within the meaning of r 43.04 of the General Rules. Orders made in default of defence or after a hearing on the merits in the absence of a party have been held to be ‘final orders’ within the meaning of s 110 of the Magistrates’ Court Act 1989 (Vic).[6] Further, this application will finally determine the rights of the parties in respect of the matter.[7] Accordingly, an affidavit verifying the other relief sought must be confined to the facts a deponent is able to state of the deponent’s own knowledge.
[6]Kinex Exploration Pty Ltd v Tasco Pty Ltd and Anor (Kinex) [1995] 2 VR 318, 320-322; Gill v Gill [2014] VSC 250, [79].
[7]See Carr v Finance Corp of Aust Ltd (No 1) (1981) 147 CLR 246, [2] (Gibbs CJ), [12] (Mason J), Kinex, 321-322 .
THE ALLEGED CONTRAVENTIONS
The Plaintiff alleges the following contraventions:
| Contravention | Award/legislative provision |
| A. Failure to pay Award minimum rates of pay | Act s 45; Cl 20 Restaurant Industry Award 2010 (2010 Award); Cl 18 Restaurant Industry Award 2020 (2020 Award) |
| B. Failure to pay casual loading rate | Act s 45; Cl 13.1 2010 Award; Cl 11.1 2020 Award |
| C. Failure to pay penalty rates | Act s 45; Cl 34 2010 Award; Cl 24 2020 Award |
| D. Failure to pay overtime | Act s 45; Cl 13.5, 33.1 2010 Award; Cl 11.5, 23.1 2020 Award |
| E. Failure to pay superannuation | Act s 45; Cl 30.2 2010 Award; Cl 22.2 2020 Award |
| F. Failure to provide copies of Award and National Employment Standards | Act s 45; Cl 5 2010 Award; Cl 3.3 2020 Award |
| G. Failure to provide Fair Work Information Statement | Act ss 61, 125 |
| H. Failure to make copy of records available on request | Act s 798; Fair Work Regulations 2009 (Cth), r 3.42(1) |
ARE THE FIRST DEFENDANT’S CONTRAVENTIONS ESTABLISHED?
The First Plaintiff Affidavit and Second Plaintiff Affidavit both establish that the First Defendant was required to pay the amount of the Underpayment Claim to the Plaintiff, and did not do so. I am satisfied that the Plaintiff was a casual employee of the First Defendant between 8 October 2018 and 8 February 2022, performing the work of a restaurant and café employee, and the 2010 Award and 2020 Award applied to her employment. I am satisfied she was properly classified as a kitchen attendant grade 1 until around June 2019 and a food and beverage attendant grade 2 from around July 2019. I am satisfied that the First Defendant failed to pay her the relevant minimum award rates of pay, casual loading, penalty rates and overtime rates claimed, and failed to pay superannuation on these sums as required. Accordingly, the First Defendant’s contraventions in groups A, B, C, D and E are established.
However, there is no affidavit evidence verifying the alleged failure of the First Defendant to provide a copy of the relevant award, Fair Work Information Statement or the First Defendant’s alleged failure to make a copy of records available on request. In the absence of this evidence, contraventions F, G and H are not established.
ARE THE SECOND DEFENDANT’S CONTRAVENTIONS ESTABLISHED?
The Plaintiff contends that s 550(2)(c) of the Act applies because the Second Defendant engaged in conduct involved in the contraventions and had knowledge of the essential facts of the contraventions.
The High Court in Productivity Partners Pty Ltd v Australian Competition and Consumer Commission (Productivity Partners)[8] recently affirmed that to establish that a person is ‘knowingly concerned’ in a contravention, knowledge of the essential matters which establish the primary contravention is sufficient.[9] Further, the Court affirmed the principle from Giorgianni v The Queen[10] that knowledge that those essential elements amounted to an offence is not required.[11]
[8](2024) 419 ALR 30; [2024] HCA 27. The Court was considering a similar accessorial liability provision to s 550(2)(c) at s 224(1)(e) of the Australian Consumer Law (Competition and Consumer Act 2010 (Cth), s 131(1) and Sch 2).
[9]Productivity Partners, [12], [82] (Gageler CJ, Jagot J), [149] (Gordon J), [258] –[261] (Edelman J), [339] (Beech-Jones J).
[10](1985) 156 CLR 473, 500, 506, 507 (Wilson, Deane and Dawson JJ).
[11]Productivity Partners, [72]-[76], [82] (Gageler CJ, Jagot J), [146], [148] (Gordon J), [52] (Beech-Jones J).
The essential facts of contraventions A – E are the respective failures to make payments due to the Plaintiff in respect of minimum rates of pay, casual loadings, penalty rates, overtime and superannuation under the 2010 Award and 2020 Award.
The First Galletti Affidavit exhibits an ASIC extract for the First Defendant dated 12 July 2024 which illustrates that the Second Defendant was its sole shareholder and from 2 August 2019 was the sole director of the First Defendant. Prior to that date, he was not a director of the First Defendant. The Second Plaintiff Affidavit establishes that since the commencement of the Plaintiff’s employment, the Second Defendant owned and ran the business, initially with another person but since around August 2019, on his own. The Second Defendant at all times told the Plaintiff what, where, when and how she should perform her work, including by giving her instructions and telling her how he wanted the café to run. He arranged payment of her wages, provided her pay slips by email and discussed all work related matters with her.
I am satisfied that the relevant acts associated with the failure to make the requisite payments in Contraventions A to E arose from the Second Defendant’s directions as to when the Plaintiff worked and the underpayment of wages or allowances personally undertaken by him. Further, from 2 August 2019 the Second Defendant was in effect the controlling mind of the First Defendant. Accordingly, I am satisfied that the Second Defendant had actual knowledge as to these matters and was knowingly concerned in each of these contraventions.
DETERMINING APPROPRIATE PENALTIES
Legal principles
The Plaintiff relied upon the summary of legal principles for determining appropriate penalties in my recent decision of Readdie v People Shop Pty Ltd (Penalty).[12] I adopt that summary, derived from Australian Building and Construction Commissioner v Pattinson (Pattinson)[13] and other authorities, without repeating it. I turn now to consider appropriate penalties in accordance with those principles.
The contraventions, aggregation pursuant to s 557 and course of conduct
[12][2025] VMC 3, [21]-[25].
[13](2022) 274 CLR 450; [2022] HCA 13.
The Plaintiff’s proposed grouping of contraventions are as identified in the table above. The Plaintiff does not contend that each instance of a failure to pay constitutes a separate contravention. Rather, the contravention of each separate award provision is considered a separate contravention (without distinction between the two awards).
Section 557 of the Act provides:
(1)For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are … taken to constitute a single contravention if:
(a) the contraventions are committed by the same person; and
(b) the contraventions arose out of a course of conduct by the person.(2) The civil remedy provisions are the following:
…
(b) section 45 (which deals with contraventions of modern awards).
Section 557 does not permit contraventions of multiple clauses within a single industrial instrument to be taken to constitute a single contravention.[14] The Plaintiff’s proposed approach is consistent with this principle. Whilst it is unclear whether contraventions of a common clause across successive instruments may be taken as a single contravention under s 557, it is permissible to regard those matters as a course of conduct[15] and I consider it appropriate to do so.
Nature and extent of the contravening conduct
[14]Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] 221 FCR 153; [2014] FCAFC 62, [10]-[27].
[15]Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; (2017) 271 IR 321; [2017] FCAFC 113, [111]-[115].
The Plaintiff contends that the contraventions occurred over a period of years, from 2018 to 2022, which demonstrates a lack of care or diligence. The Plaintiff worked 1,533 ordinary hours, each of which the Defendants failed to pay in accordance with each of the Award’s minimum rate or casual loading. The Plaintiff worked 63.25 hours on Saturdays, 195.25 hours on Sundays and 100.25 hours on public holidays, for which she did not get paid penalty rates. The Plaintiff worked 122.75 overtime hours between Monday to Friday, 5.75 overtime hours on Saturdays and 37.75 overtime hours on Sundays, for which she did not get paid overtime. I am satisfied based on these matters that the conduct was extensive.
The Plaintiff contends, and I accept, that the underpayments of her minimum rate of pay placed her in a precarious position. Further, she was deprived of entitlements which compensate employees for matters such as work outside ordinary hours, work in excess of ordinary hours and the absence of leave entitlements.
Nature and extent of the loss
The Plaintiff suffered a total loss of $31,515.81 as a result of the contraventions by the First and Second Defendants. The Plaintiff contends, and I accept, that loss is significant to her.
Further, the First Defendant has failed to comply with the Court’s order of 30 January 2025, meaning that the Plaintiff continues to be deprived of funds she is entitled to.
Circumstances of the Defendants
The First Galetti Affidavit and Second Galletti Affidavit verify that the business of the First Defendant was continuing to operate as at 30 April 2025. In the absence of any evidence to the contrary I infer this remains the case.
The Plaintiff contends that the First Defendant is a small business and accepts this is a factor in determining the quantum of penalties, notwithstanding this does not excuse non-compliance. There is no evidence as to the financial circumstances of either Defendant, meaning there is no mitigating matter in this respect.
Specific deterrence
The Defendants have failed to engage in the proceeding, and the First Defendant has failed to comply with the Court’s order of 30 January 2025.
Further, the Defendants are continuing to operate the business as a going concern and accordingly, I infer, continue to engage and manage staff.
Further again, the Plaintiff relies on a previous order of the Magistrates’ Court of Victoria against the same Defendants in Davidson v Kelyon Pty Ltd and O’Loughlin[16] on 27 December 2024 for the payment of $8,025.97. The complaint in that matter alleged contravention of award provisions by the Defendants relating to casual loading, penalty rates, overtime and superannuation over a period concurrent with the Plaintiff’s employment.
[16]Magistrates’ Court of Victoria, proceeding number MAG-CI-240222942.
The Plaintiff contends this demonstrates that the non-compliance is more widespread than simply the Plaintiff. I accept that the previous order tends to reflect a systemic rather than individual issue with the Defendants’ conduct.
I consider that each of these factors makes specific deterrence an important objective of an order for pecuniary penalties in this matter.
General deterrence
The Plaintiff referred to the observations of McDonald J in Fair Work Ombudsman v Mai[17] that employees in the hospitality industry, in particular the café and restaurant sector, ‘are generally at higher risk of being denied employment-related entitlements. Employees in these industries include a relatively high number of low paid, young, low educated and migrant workers.’[18] However, that was a conclusion formed based on evidence led in that matter by the Fair Work Ombudsman, and I do not have evidence of that nature before me. I have not had regard to this matter.
[17][2025] FCA 421.
[18]Ibid, [156].
Nonetheless, as the Plaintiff contended, it is important that the penalties imposed are sufficient such that contravening the Act is not viewed as a ‘cheaper’ way to run a business by other employers, or that penalties are not seen as an acceptable cost of doing business.
Maximum penalties
The value of a penalty unit changed during the Plaintiff’s employment, on 1 July 2020, from $210 to $222.[19] As this occurred approximately halfway through the period of the contravening conduct, I consider it appropriate to apply an average figure of $216.
[19]Crimes Act 1914 (Cth), s 5AA.
Contraventions of s 45 of the Act have a maximum penalty of 60 penalty units for an individual and 300 penalty units for a body corporate. Accordingly, the maximum penalty for each contravention for the First Defendant is $64,800 and for the Second Defendant is $12,960. The Plaintiff’s proposed penalties are as follows:
| A. Failure to pay Award minimum rates of pay | First Defendant $15,000 Second Defendant $4,000 |
| B. Failure to pay casual loading rate | First Defendant $15,000 Second Defendant $4,000 |
| C. Failure to pay penalty rates | First Defendant $10,000 Second Defendant $3,000 |
| D. Failure to pay overtime | First Defendant $10,000 Second Defendant $3,000 |
| E. Failure to pay superannuation | First Defendant $5,000 Second Defendant $1,000 |
The cumulative total maximum penalties for contraventions A – E are $324,000 and $64,800 respectively. The cumulative total penalties proposed by the Plaintiff for contraventions A to E are $55,000 (approximately 17 per cent of the maximum) and $15,000 (approximately 23 per cent of the maximum) respectively.
However, the Plaintiff accepts that some reduction is warranted from these cumulative totals in application of the totality principle.
Totality
The totality principle requires an assessment of the total sum of penalties imposed to ensure it does not exceed what is proper for the totality of the contravening conduct.[20] The Plaintiff contends that in light of the status of the First Defendant as a small business, penalties ought to act as an adequate deterrent but not be ‘unnecessarily crushing.’
[20]Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5, [52]; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 145 ALR 36; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.
In respect of the eight alleged contraventions, the Plaintiff proposed total penalties of in the range of $50,000 – $60,000 for the First Defendant and $10,000 – $15,000 for the Second Defendant. This took account of proposed penalties for contraventions F to H (not established) totalling $5,000 and $1,250 respectively.
Having regard to all of the matters referred to above, I am satisfied that the Plaintiff’s proposed penalties for contraventions A – E are appropriate. I agree some reduction is warranted in application of the totality principle. Applying this principle, notwithstanding that contraventions F to H were not established, I consider penalties at the bottom of the proposed range for each of the Defendants is appropriate. Accordingly, I will order that the First Defendant pay pecuniary penalties of $50,000 and the Second Defendant pay pecuniary penalties of $10,000.
Who should penalties be payable to?
The Plaintiff was represented in the proceeding by the Young Workers Centre. The Plaintiff’s Second Affidavit states:
I request that any pecuniary penalties awarded are made to the Young Workers Centre.
This is because:
(a) the Young Workers Centre assisted me for free, which meant I could pursue this matter because I would not have had the financial capacity to pay for legal representation.
(b) the Young Workers Centre do important work assisting young people with legal problems and I want them to be able to support other young people in the same way they helped me.The Plaintiff’s request was not supported by any submissions and I was not referred to any authority as to the appropriateness of so ordering. I am unaware of a circumstance where an order of this nature has been made.
Section 546(3) of the Act provides:
The court may order that the pecuniary penalty, or part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular organisation; or
(c) a particular person.In Sayed v Construction, Forestry, Mining and Energy Union (Sayed)[21] the Court held that the power in s 546(3) ‘is ordinarily to be exercised by awarding any penalty to the successful applicant.’[22]
[21][2016] FCAFC 4.
[22]Ibid, [101], [107].
After considering in detail the legislative history of ‘common informer’[23] provisions in predecessor legislation to the Act, the Court observed:
One may begin to understand, therefore, why it is that s 546(3) …empowers the Court to order that a pecuniary penalty, or a part of the penalty, be paid to the Commonwealth, a particular organisation, or a particular person. If a proceeding for contravention … is brought by the inspector, the inspector being a public official of the Commonwealth, it may be expected that ordinarily the pecuniary penalty would be paid to the Commonwealth. If a union were to bring the proceeding successfully, for the benefit of its members, it may be expected that the penalty would be paid to the union. If the union brought the proceeding for the benefit of a particular member, there might be payment of the penalty to that member, on the basis he or she is a particular person to whom it should be paid; or part payment to that member and the balance to the union. If a person individually affected by a contravention brought the proceeding, then the penalty may be paid to him or her as a particular person. There is a certain symmetry between the person or entity authorised to prosecute an enforcement proceeding and the person or entity to whom the penalty, if imposed, might be paid. This symmetry is recognised by the Explanatory Memorandum and authority.[24]
[23]Ibid, [60]-[70].
[24]Ibid, [72]
Regarding the circumstances in which an order may be made that penalties be paid to someone other than the successful applicant, the Court went on to state:
We accept that there may be cases … where the penalty, or a part of the penalty, should be paid to another person in the circumstances described by Gray J in Plancor at [44] ….
The examples given in the Explanatory Memorandum and by Gray J in Gibbs as to when a payment (or a part payment) might be made to a particular person support the view that, depending on the factual circumstances of a particular case, a particular person for whose benefit, in effect, the contravention proceeding was brought may be the beneficiary of a s 546(3) order in the types of cases there referred to.[25][25]Ibid, [101]-[102]. The reference to ‘the circumstances described by Gray J in Plancor’ is to Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357, [44] (Gray J): Sayed, [96]. The reference to the ‘Explanatory Memorandum’ is a reference to the Explanatory Memorandum for the Fair Work Bill 2008 in respect of s 546(3) at paragraph 2158: Sayed, [45], [74]. The reference to the examples given ‘by Gray J in Gibbs’ is to Gibbs v The Mayor, Councillors and Citizens of The City Of Altona (1992) 37 FCR 216; [1992] FCA 553, [26]: Sayed, [82].
Based on Sayed, s 546(3) has the dual purpose of firstly, accommodating the range of persons who may bring a proceeding for contravention of a pecuniary penalty, and secondly, accounting for a circumstance where the person who is the ‘applicant’ is not the person for whose benefit the contravention proceeding was brought. In this matter, ordering that penalties be paid to the Young Workers Centre does not meet either purpose.
Additionally, the Court in Sayed confirmed that an order under s 546(3) is not intended to be compensatory or related to the incurring of costs.[26] Similarly, in Construction, Forestry, Maritime, Mining and Energy Unionv Fair Work Ombudsman (The Botany Cranes Case)[27] the Court held that whilst departure from the ‘usual order’ may be justified in ‘extraordinary circumstances,’ doing so for compensatory purposes was inconsistent with the ordinary exercise of the discretion.[28] Compensating the Young Workers Centre or covering its costs is not a basis for making the order sought.
[26]Ibid, [103]-[106].
[27][2023] FCAFC 40.
[28]Ibid, [239].
Accordingly, I am not persuaded to depart from the ‘usual order’ that the penalties be paid to the Plaintiff. It is of course open to the Plaintiff to privately give effect to her desire to direct monies to the Young Workers Centre.
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