FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Hornyak v SIMS Integrated Solutions Pty Ltd [2022] FedCFamC2G 509
File number: SYG 3733 of 2016 Judgment of: JUDGE CAMERON Date of judgment: 27 June 2022 Catchwords: INDUSTRIAL LAW – Breaches of civil remedy provisions of the Fair Work Act 2009 (Cth) – imposition of pecuniary penalties – relevant considerations.
INDUSTRIAL LAW – Accessorial liability for breaches of civil remedy provisions of Fair Work Act 2009 – imposition of pecuniary penalties.
INDUSTRIAL LAW – Costs – relevant considerations.
Legislation: Fair Work Act 2009 (Cth) ss.45, 323, 535, 539, 546, 550, 557, 570
Crimes Act 1914 (Cth) s.4AA
Fair Work Regulations 2009 (Cth) reg.3.33
Cases cited: Hornyak v SIMS Integrated Solutions Pty Ltd & Ors [2020] FCCA 1764
Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216
Kelly v Fitzpatrick (2007) 166 IR 14
McIver v Healey [2008] FCA 425
Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153
Fair Work Ombudsman v Lohr (2018) 356 ALR 424
Johnson v The Queen (2004) 78 ALJR 616
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Number of paragraphs: 76 Date of hearing: 18 February 2021 Place: Sydney Counsel for the Applicant: Mr A. Gerard Solicitor for the Applicant: Crawford de Carne Counsel for the Respondents: Ms L. Andelman Solicitor for the Respondents: Turner Freeman ORDERS
SYG 3733 of 2016 BETWEEN: ATTILA HORNYAK
Applicant
AND: SIMS INTEGRATED SOLUTIONS PTY LTD
First Respondent
IMRE HORNYAK
Second Respondent
CATHERINE HORNYAK
Third Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
27 JUNE 2022
THE COURT ORDERS THAT:
1.The first respondent pay a penalty of $10,000 for its contraventions of ss.45 and 323 of the Fair Work Act 2009 (Cth).
2.The first respondent pay a penalty of $6,000 for its contravention of s.535 of the Fair Work Act 2009 (Cth).
3.The second respondent pay a penalty of $2,000 for his contraventions as an accessory of ss.45 and 323 of the Fair Work Act 2009 (Cth).
4.The second respondent pay a penalty of $1,200 for his contravention as an accessory of s.535 of the Fair Work Act 2009 (Cth).
5.The penalties be paid to the applicant.
6.The penalties be paid within 28 days.
7.The applicant have liberty to apply in the event that any of orders 1 to 6 is not complied with.
8.The first and second respondents pay 60% of the applicant’s costs as agreed or as assessed in accordance with pt.1 of sch.1 to the Federal Circuit Court Rules 2001 (Cth) as it stood on 1 January 2018, in relation to which the parties have liberty to…
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- Case
- [2022] FedCFamC2G 509
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the appropriate penalties for the contraventions identified and assessing whether the penalties imposed would adequately serve the purpose of deterrence. The court also had to consider whether multiple contraventions arising from the same course of conduct should be treated as a single contravention for penalty purposes. Furthermore, the court was required to assess the totality of the penalties to ensure they appropriately reflected the gravity of the contraventions.
The court first identified the separate contraventions involved, each being a distinct obligation under the Award and the FW Act. It considered whether these contraventions should be treated as a single contravention under the course of conduct principle. The court determined that while multiple contraventions arose from the same course of conduct, they warranted separate consideration to ensure the penalties were proportionate and effective in serving their deterrent purpose. The court then assessed the appropriate penalty for each contravention, taking into account various factors such as the gravity of the contraventions and the need for deterrence. The aggregate penalty was reviewed to ensure it was an appropriate response to the contravening conduct.
The court ordered SIMS Integrated to pay Attila Hornyak penalties for each contravention, and Imre was also ordered to pay penalties as an accessory. The court's final orders included both pecuniary penalties and costs, ensuring that the penalties imposed served their intended deterrent function effectively.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Cathy submitted that the proceeding against her was “incompetent or hopeless” because the statement of claim failed to particularise material facts supportive of the allegation that she had “aided”, “abetted”, “counselled”, “procured”, “induced” or was “knowingly concerned in or a party to” the contraventions and the situation was not improved by her day-long cross-examination.CONSIDERATIONPenalty In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157, Kiefel CJ, Keane, Nettle and Gordon JJ said:… the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. (at 195 [116]) In this case, the question of penalty is to be determined as follows:(a)the Court is to identify the separate contraventions involved. Each contravention of a separate obligation in the Award and the FW Act is a separate contravention: Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216 at 223; Kelly v Fitzpatrick (2007) 166 IR 14 at 17 [11]; McIver v Healey [2008] FCA 425 at [16]; Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 at 159 [13]; Fair Work Ombudsman v Lohr (2018) ALR 424 at 436 [29];(b)the Court should consider whether contraventions resulting from any particular course of conduct ought to be treated as a single contravention under s.557(1) of the FW Act; (“course of conduct”);(c)because a contravener should not be penalised twice for what is, in substance, the same conduct, to the extent that two or more contraventions arise out of the same course of conduct or the one transaction, that fact should be taken into account when considering whether a “concurrent” or single penalty should apply to those contraventions: Johnson v The Queen (2004) 78 ALJR 616 at [4]-[5]; Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 at [61] - [63]. Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 at 294-296 [226]-[234], (the “course of conduct” or “grouping” principle). These considerations are distinct from the totality principle: Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at 396 – 398 [41]-[46] (per Stone and Buchanan JJ);(d)the Court should determine an appropriate penalty to impose in respect of each contravention that is to be penalised (whether a single contravention, a course of conduct or group of contraventions) having regard to all of the circumstances of the case; and(e)having fixed an appropriate penalty for each contravention or group of contraventions, the Court should consider the aggregate penalty to determine whether it is an appropriate response to the contravening conduct: Kelly v Fitzpatrick at 21 - 22 [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560, (the “totality principle”).