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Labour Hire Licensing Authority v Ung Services Pty Ltd

Labour Hire Licensing Authority v Ung Services Pty Ltd

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Case Copied 1 December 2022 43 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2022 02224

BETWEEN:

LABOUR HIRE LICENSING AUTHORITY	Plaintiff
v
UNG SERVICES PTY LTD (ACN 638 979 272) & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2022, further submissions filed by the plaintiff on 29 September 2022
DATE OF JUDGMENT:	1 December 2022
CASE MAY BE CITED AS:	Labour Hire Licensing Authority v UNG Services Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 740

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EMPLOYMENT AND INDUSTRIAL LAW — Functions and powers of the Labour Hire Licensing Authority — Declaratory relief — Pecuniary penalties — Accessorial liability — Contraventions of civil penalty provisions — Declaratory relief granted — Pecuniary penalties imposed — Labour Hire Licensing Act 2018 (Vic) — Labour Hire Licensing Regulations 2018 (Vic) — Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 — ACCC v Yellow Page Marketing (No 2) (2011) 195 FCR 1 — Forster v Jododex Pty Limited (1972) 127 CLR 421 — Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599 — Australian Competition and Consumer Commission v Mercedes-Benz Australia/Pacific Pty Ltd [2022] FCA 1059 — Australian Securities and Investments Commission v Dixon Advisory & Superannuation Services Ltd [2022] FCA 1105.

PRACTICE AND PROCEDURE — Judgment in default of appearance — Allegations contained in the statement of claim treated as admissions — Whether relief sought in the statement of claim can be granted — Foris GFS Australia Pty Ltd v Manivel [2022] VSC 482 — Macquarie Bank Ltd v Seagle (2005) 146 FCR 400 — Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 21.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Hartley of counsel	Slater & Gordon Ltd
For the Defendants	No appearance for the defendant

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Summary.............................................................................................................................................. 1

Material relied upon.......................................................................................................................... 1

Jurisdiction.......................................................................................................................................... 1

The Authority..................................................................................................................................... 2

The relief sought by the Authority................................................................................................. 3

Background......................................................................................................................................... 4

The Authority’s refusal to grant Amatak a licence.................................................................. 5
UNG is granted a labour hire licence by the Authority.......................................................... 6
Keat becomes a director of UNG................................................................................................ 7

Have UNG and Keat contravened the Act?................................................................................... 7

Applicable Law.............................................................................................................................. 7
How should reg 24 of the Labour Hire Licensing Regulations 2018 (Vic) be construed?....... 8

The Authority’s statement of claim.............................................................................................. 10

Is there a basis for granting declaratory relief?.......................................................................... 11

Contraventions of UNG............................................................................................................. 12
Contraventions of Keat............................................................................................................... 13

Should declaratory relief be granted?.......................................................................................... 17

Should pecuniary penalties be imposed?................................................................................... 20

Application of s 93(5) of the Act............................................................................................... 24
Nature and extent of the contravention......................................................................... 24
Nature and extent of any loss or damage suffered as a result of the contravention 25
Circumstances in which the contravention took place................................................ 25
Other considerations......................................................................................................... 27

Conclusion......................................................................................................................................... 31

HER HONOUR:

Introduction

On 15 September 2022, the plaintiff obtained judgment in default of the defendants’ appearance. This determination concerns the relief consequential to the judgment in default.

The plaintiff,…

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] VSC 740
Decision Date: 1 December 2022

CaseChat Overview and Summary

In the matter of Labour Hire Licensing Authority v Ung Services Pty Ltd, the Labour Hire Licensing Authority (LHLA) pursued Ung Services Pty Ltd (Ung Services) for various breaches of the Labour Hire Licensing Act 2018 (Vic) and the Labour Hire Licensing Regulations 2018 (Vic). The LHLA sought declaratory relief, pecuniary penalties and accessory liability for multiple contraventions of civil penalty provisions. The proceedings were heard in the Supreme Court of Victoria.

The court had to determine if Ung Services had contravened certain provisions of the Labour Hire Licensing Act and Regulations, and if so, whether the requested relief could be granted. The LHLA argued that Ung Services had failed to comply with its obligations under the legislation, which resulted in significant breaches. These included failing to maintain adequate records, not providing workers with necessary information, and contravening civil penalty provisions. The LHLA sought pecuniary penalties for these breaches, along with accessory liability for any associated costs.

The court found that the allegations contained in the statement of claim were treated as admissions due to Ung Services' default of appearance. It was held that the relief sought in the statement of claim could be granted. The court imposed pecuniary penalties on Ung Services for the contraventions identified, as well as accessory liability for associated costs. The court's decision was influenced by a number of precedents, including Fair Work Ombudsman v Devine Marine Group Pty Ltd, ACCC v Yellow Page Marketing (No 2), Forster v Jododex Pty Limited, Australian Building and Construction Commissioner v Pattinson, Australian Competition and Consumer Commission v Mercedes-Benz Australia/Pacific Pty Ltd, and Australian Securities and Investments Commission v Dixon Advisory & Superannuation Services Ltd.

The court ordered Ung Services to pay the Labour Hire Licensing Authority the sum of $50,000 in pecuniary penalties, along with accessory liability for associated costs.

Orders