Harper v AF Maple Services Pty Ltd
[2023] FedCFamC2G 734
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harper v AF Maple Services Pty Ltd [2023] FedCFamC2G 734
File number(s): PEG 17 of 2022 Judgment of: JUDGE STREET Date of judgment: 24 August 2023 Catchwords: FAIR WORK – CONSENT ORDERS AND DECLARATIONS– adjournment of penalty hearing. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia 2021 (Cth)
Federal Court Rules 2011 (Cth)
Division: Division 2 Family Law Number of paragraphs: 6 Date of hearing: 26 May 2023 Place: Sydney Solicitor for the Applicant: Mr J Dasey First Respondent: Second Respondent granted leave to appear Second Respondent: Appeared in person ORDERS
PEG 17 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANNIE HARPER
Applicant
AND: AF MAPLE MANAGEMENT SERVICES PTY LTD
First Respondent
JAMESON CHARLES CLARKE BUXTON
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
26 MAY 2023
BY CONSENT, THE COURT DECLARES THAT:
1.The first respondent has contravened s 45 of the Fair Work Act 2009 (Cth), by not paying the applicant the minimum salary required by the Clerks-Private Sector Award 2020.
2.The applicant’s salary under her contract of employment, to the extent that it exceeded the minimum payable under her award is a safety net contractual entitlement for the purpose of s 542 of the Fair Work Act 2009 (Cth).
3.The first respondent has contravened s 323 of the Fair Work Act 2009 (Cth) by not paying the applicant amounts due to her on each of the dates, being 15 June 2021, 15 July 2021, 15 August 2021, 15 September 2021, and 15 October 2021.
4.The second respondent was involved, within the meaning of s 550(2)(c) of the Fair Work Act 2009 (Cth), in the first respondent’s contraventions at declarations 1, 2 and 3 above.
BY CONSENT, THE COURT ORDERS THAT:
1.Pursuant to s 545(2)(b) of the Fair Work Act 2009 (Cth), the first and second respondents to pay the applicant compensation in the amount of $41,523.20 on or before 12 June 2023.
THE COURT ORDERS THAT:
2.Leave is granted to Mr Buxton to appear on behalf of the first respondent even though he is not a legal practitioner.
3.Interest on the said compensation order will otherwise continue if not paid by 12 June 2023 in accordance with the Federal Court Rules 2011 (Cth).
4.The matter is stood over for directions at 9:30AM (AWST) on 22 June 2023 via video and/or audio link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia 2021 (Cth).
5.Leave is granted to the parties to provide consent orders to be made in chambers if appropriate.
THE COURT NOTES THAT:
A.The second respondent has indicted that payment will be affected on or before 12 June 2023 of the above compensation Order.
B.The Court has conveyed that if such payment is in fact made, it may materially impact on the discretionary approach of the court as to whether it should proceed to fix any penalty hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were commenced on 10 February 2022 in which the applicant was seeking to recover outstanding entitlements under the Fair Work Act 2009 (Cth) (‘the Act’) against the first respondent employer and the second respondent corporate mind of the first respondent, allegedly knowing and involved in the contraventions alleged under the Act.
On 20 April 2023, an application was filed for summary judgment by the applicant. In response, the respondents identify that they conceded the contraventions and agreed to the summary judgment in that regard, as well as orders in respect of the compensation and knowing involvement, but resisted the proposition that there was a serious contravention and sought to resist the imposition of penalties.
The constructive position by the respondents is one which significantly saves further Court time and resources. The Court has made declarations in accordance with the admission made, and together with interest in the amounts claimed in the initiating application. The Court has made a compensation order for payment on or before 12 June 2023, having been informed by the second respondent that he was taking steps from his own earnings and his engagement with others to be in a position to ensure that he attempts a payment of the same by 12 June 2023.
It is incredibly important that employee’s entitlements are paid and paid on time. It is the case that these are significant amounts for the applicant, and the applicant should ordinarily have been paid properly by her employer without the steps that she has had to undertake.
Nonetheless, the identified willingness to consent to the relevant declarations and the compensation order, are material matters that the Court can and will take into consideration on the next occasion if payment has been made in considering whether or not, as a matter of discretion, there should be any further step taken in relation to penalty.
If such payment has not been made, the failure to comply with the Court’s order is a further aggravating factor in the penalty that might otherwise be imposed if the Court were to have a penalty hearing. The Court has made orders that provide an ability for the parties to discontinue or have the proceedings otherwise dismissed if payment has been made within the timeframe specified. It is for these reasons that the Court has made the above orders.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 24 August 2023
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