Federal Circuit and Family Court of Australia
(DIVISION 2)
Manchee v BTIG Australia Limited (No 2) [2023] FedCFamC2G 43
File number(s): SYG 2318 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 1 February 2023 Catchwords: INDUSTRIAL LAW – Breaches of civil remedy provisions of the Fair Work Act 2009 – imposition of pecuniary penalties – relevant considerations.
INDUSTRIAL LAW – Course of conduct – grouping of contraventions – whether avoidance of civil double jeopardy required contraventions of discrete payment obligations to be grouped together.
Legislation: Fair Work Act 2009 (Cth) ss 12, 44, 45, 90, 539, 545, 546, 556, 557, 557A
Crimes Act 1914 (Cth) s 4AA
Cases cited: Manchee v BTIG Australia Limited [2022] FedCFamC2G 813
Dafallah v Fair Work Commission (2014) 225 FCR 559
Kelly v Fitzpatrick (2007) 166 IR 14
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088
Division: General Number of paragraphs: 30 Date of hearing: 23 January 2023 Place: Sydney Counsel for the Applicant: Mr R. Millar Solicitor for the Applicant: Opus Legal Counsel for the Respondent: Mr R. Seck Solicitor for the Respondent: McArdle Legal ORDERS
SYG 2318 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANDREW MANCHEE
Applicant
AND: BTIG AUSTRALIA LIMITED
Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
1 February 2023
THE COURT ORDERS THAT:
1.The respondent is to pay the applicant penalties totalling $15,000 within 28 days.
2.In all other respects the application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Cameron
INTRODUCTION
The applicant, Mr Manchee, was employed as a “sales trader” by the respondent, BTIG Australia Limited (“BTIG”) from 3 December 2012 until 13 April 2021. He alleged that BTIG had breached the Banking, Finance and Insurance Award 2010 (“2010 Award”) and the Fair Work Act 2009 (Cth) (“FW Act”) by failing to provide him with paid annual leave, annual leave loading and minimum wages because, instead of paying him a wage or salary, it had paid him a commission on trades. His originating application and statement of claim filed on 16 December 2021 relevantly sought an order pursuant to s.546 of the FW Act that BTIG pay penalties to him for the alleged contraventions of the FW Act.
On 6 October…
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- Case
- [2023] FedCFamC2G 43
- Decision Date
CaseChat Overview and Summary
The court considered the nature and extent of the contraventions, which included BTIG's failure to pay minimum wages, paid annual leave, and annual leave loading as per the 2010 Award and the National Employment Standards. The court also considered the varying values of a penalty unit over the years in question. In determining the penalty, the court noted that while the value of a penalty unit at the end of the contravention period should be considered, the fact that lower amounts applied for part of the period could also be taken into account. The court concluded that the total penalties of $15,000 imposed on BTIG were just and appropriate.
The court acknowledged the unusual context of the case, as no order for financial compensation was made. The court emphasised that the purpose of civil penalties under the Fair Work Act is deterrence, not compensation. The court considered the various discretionary factors discussed in previous cases to arrive at an appropriate penalty. Ultimately, the court ordered BTIG to pay the penalties totalling $15,000 within 28 days and dismissed the remainder of Mr Manchee's proceeding as he did not make out his claim for compensation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
No evidence was filed in this stage of the proceeding.CONSIDERATION This is an unusual case in that no order for financial compensation has been made. Noting that unusual context, is to be recalled that the purpose of civil penalties of the sort available under the FW Act is deterrence, not compensation: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at 195 [116]; Dafallah v Fair Work Commission (2014) 225 FCR 559 at 593 [140]. In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2018) 264 FCR 155, the Full Court of the Federal Court said:It is unnecessary to engage in any extended discussion of principle. Of particular significance is the recognition that deterrence (general and specific) is the principal and indeed only object of the imposition of a penalty — to put a price on contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the Act: French J in Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076 at 52,152, cited by the plurality in Commonwealth v Director of the Fair Work Building Industry Inspectorate (Civil Penalties Case) [2015] HCA 46; (2015) 258 CLR 482 at [55]. ... (at 167 [19]) When determining the appropriate penalty to impose, regard should be had to all of the circumstances of the case, guided by the various discretionary considerations discussed in authorities such as Kelly v Fitzpatrick (2007) 166 IR 14, in order to arrive at a single result that is an instinctive synthesis of those various factors. In circumstances such as the present, where the contraventions occurred over a period during which the value of a penalty unit changed, it would be appropriate, when setting the penalties to be imposed, to have regard to the value of a penalty unit at the end of the period of contravention, although regard may also be had to the fact that lower amounts applied for part of the period: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 per Katzmann J at [396]–[401]. The nature and extent of the conduct which led to the breaches Factual findings were set out in the Contraventions Judgment. Amongst them were findings that BTIG:(a)failed to pay minimum wages in accordance with the 2010 Award;(b)failed to provide paid annual leave in accordance with the NES; and(c)failed to pay annual leave loading in accordance with the 2010 Award. The conduct commenced at the time Mr Manchee was hired and continued until the 2012 Agreement was replaced in August 2020. The breaches took place over a period of 7.6 years. The nature and extent of any loss or damage sustained as a result of the contraventions As noted earlier, Mr Manchee suffered no loss by reason of the contraventions. I note his submission that this case concerned … a significant failure to pay substantial sums which were due if there had been statutory compliancebut repeat the observation in the Contraventions Judgment that:… it is clear that if … BTIG had had regard to its obligations under the Award, Mr Manchee would not have been paid more than in fact he was, whether in respect of salary or annual leave entitlements with loading.