Ghobrial v Spectrum Migrant Resource Centre - [2022] FedCFamC2G 358

Federal Circuit and Family Court of Australia

(DIVISION 2)

Ghobrial v Spectrum Migrant Resource Centre [2022] FedCFamC2G 358

File number(s):	MLG 3754 of 2020
Judgment of:	JUDGE BLAKE
Date of judgment:	17 November 2022
Catchwords:	INDUSTRIAL LAW – Pecuniary penalties – Applicant alleged, inter alia, failure to consult with the Applicant prior to the termination of his employment on redundancy grounds as required by the Social, Community, Home Care and Disability Services Award 2010 – where contraventions were admitted promptly - assessment of penalty to be imposed - where Respondent submitted no penalty should be imposed because no quantifiable loss for the Applicant and because consultation unlikely to have negated outcome – Respondent’s submission ignores authorities on the importance of consultation – other factors assessed – HELD Respondent to pay pecuniary penalties for two contraventions of Award.
Legislation:	Fair Work Act 2009 (Cth) ss 45, 546(1), 557, 557A, 557A(1), 557A(2). Social, Community, Home Care and Disability Services Industry Award 2010 cc 8, 8.1, 8.2. Workplace Relations Act 1996 (Cth) ss 170GA, 170GA(1)(b).
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 Australian Competition and Consumer Commission v BAJV Pty Ltd [2014] FCAFC 52 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 Boyd v Glenvill Pty Ltd (No 2) [2021] FedCFamC2G 164 Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Optus Administration Pty Ltd (AW791910 Print L4596) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (C2001/5770 PR911257) Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (C2758 Dec 1533/98 S Print R0234) Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171 Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301 Hansen v Mt Martha Community Learning Centre Inc (No 2) [2015] FCA 1283 Kelly v Fitzpatrick [2007] FCA 1080 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Parker & Ors v Australian Building and Construction Commissioner (2019) 365 ALR 402 Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 Sayed v Construction, Forestry, Mining and Energy Union 239 (2016) FCR 336 Sinfield v London Transport Executive [1970] 1 Ch 550 TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172
Division:	Division 2 General Federal Law
Number…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FedCFamC2G 358
Decision Date

CaseChat Overview and Summary

This case involved an application for the imposition of pecuniary penalties against Spectrum Migrant Resource Centre for contraventions of the Social, Community, Home Care and Disability Services Industry Award 2010. The Applicant, Mr Ghobrial, alleged that Spectrum had failed to consult with him prior to terminating his employment on redundancy grounds as required by the Award. Spectrum admitted the contraventions. The Court had to decide the appropriate amount of penalty to be imposed on Spectrum for the contraventions. The Court considered various factors, including the nature and extent of the contraventions, whether the contraventions were deliberate, the size of the business, contrition, co-operation and corrective action, and the need for deterrence. The Court found that the contraventions were serious, and imposed a penalty of $25,200 for the first contravention and $6,300 for the second contravention. The Court ordered Spectrum to pay the penalties to Mr Ghobrial within 30 days of the date of the reasons.

Orders