Murphy v Rooney
[2019] FCCA 547
•12 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MURPHY v ROONEY | [2019] FCCA 547 |
| Catchwords: INDUSTRIAL LAW – Failure to pay wages – deliberateness of conduct – relief by way of compensation – factors going to penalty – penalty imposed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.2C Crimes Act 1914 (Cth), s.4AA Fair Work Act 2009 (Cth), ss.12, 323, 545, 546, 547 |
| Cases cited: Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 |
| Applicant: | JOSEPH ANDREW MURPHY |
| Respondent: | DANIEL PIO ROONEY |
| File Number: | MLG 3140 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 8 March 2019 |
| Date of Last Submission: | 8 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 12 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brimfield |
| Solicitors for the Applicant: | Fitzroy Legal Service Inc |
| The Respondent: | No appearance |
THE COURT DECLARES THAT:
The Respondent contravened s.323 of the Fair Work Act 2009(Cth) (Act), by failing to pay the applicant the amounts due in respect of the work performed by him on 10, 11 and 12 March 2018.
THE COURT ORDERS THAT:
The Respondent pay the applicant the sum of $473.33.
The Respondent pay a penalty pursuant to s.546(1) of the Act for his contraventions set out in paragraph 1 of this Order fixed in the sum of $3,000.
The Respondent pay the said penalty of $3,000 to the Fitzroy Legal Service Inc (ABN 13 421 440 211) within 28 days of this Order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 3140 of 2018
| JOSEPH ANDREW MURPHY |
Applicant
And
| DANIEL PIO ROONEY |
Respondent
REASONS FOR JUDGMENT
By application filed on 28 August 2018, the applicant seeks relief against the respondent employer for the alleged non-payment of wages. The claims for relief sought in this Court were brought pursuant to s.323 of the Fair Work Act 2009 (Cth) (Act) and for breach of agreement.
When the matter was listed for directions on 14 November 2018, there was no appearance by the respondent. An order was made permitting substituted service of the application. A further order was made that in default of the respondent filing a notice of address for service, the matter proceed as an undefended hearing on 8 March 2019.
Service was effected in accordance with the order made on 14 November 2018 and a notice of address for service was not filed. The respondent was notified of the hearing date. On 8 March 2019, when the matter was called, there was no appearance by or on behalf of the respondent.
The applicant is a citizen of the United Kingdom who travelled in Australia on a Working Holiday Maker visa.
On 9 April 2018, the applicant responded by SMS to a job advertisement posted on the Gumtree website. The advertisement offered various jobs including the door-to-door distribution of advertising flyers (flyers). By a text message, the applicant made an offer to do this work. The applicant received a reply from the respondent by text who stated that there was work available for delivering flyers and that the applicant should be prepared to walk 20 kilometres per day for the job. The applicant was told to download an App, My Walk, to his mobile phone. The text stated that his pay would be at the rate of $150 per day. The respondent replied that the applicant could start work the following day and that the parties should meet at Box Hill railway station at 9:30am.
The applicant met with the respondent, was provided flyers for “Dan’s Home Care”. He worked for three days from 10 – 12 April 2018 delivering flyers to mailboxes to premises in the areas designated by the respondent. He performed the work that was required of him.
The respondent failed to pay the applicant $450 for the three days’ work which he performed.
I am satisfied that the respondent was a National Systems Employer within the meaning of the Act. By s.323 of the Act, the respondent was obliged to pay the applicant in full by one of the means prescribed. The respondent has failed to do so. As a result, the respondent has committed a breach of s.323 of the Act.
The orders sought by the applicant were for payment of the sum of $450 together with interest[1] and costs[2]. An order was also sought for the payment of a pecuniary penalty. [3]
[1] See s.547.
[2] See s.570.
[3] See s.546.
The applicant is entitled to an order pursuant to s.545(2) of the Act for unpaid wages in the sum of $450 together with interest of $23.33.
As concerns the imposition of a penalty pursuant to s.546(1), I am satisfied that the respondent has contravened a civil penalty provision. [4]
[4] See s.323.
The circumstances of the case support a conclusion that the court should exercise its discretion in favour of the imposition of a penalty. The purpose of imposing a penalty under the Act is primarily protective of the public interest in securing compliance with the Act. The object of a pecuniary penalty is to place a price on contravention that is “sufficiently high to deter repetition by the contravenor and others who might be tempted to contravene.”[5] The penalty that is fixed should reflect that stated purpose and object with a view to ensuring that the penalty is not merely regarded as an acceptable cost of doing business.[6] In terms of general deterrence, it is also important to relay the message that such contraventions are both serious and unacceptable. Each of those principles ought be applied in the present case.
[5]Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, [98] (Dowsett, Greenwood and Wigney JJ).
[6] Ibid.
In fixing the amount of the penalty, the court is required to identify and balance all relevant facts and circumstances and to make a value judgment as to what is considered to be an appropriate penalty. The court is authorised to adopt a process of instinctive synthesis which evaluates all factors that are considered relevant to the penalty and make a value judgment as to an appropriate penalty in all the circumstances.
Factors relating to the objective seriousness of a contravention include:
. . . the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.[7]
[7]Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, [103].
Factors relating to a respondents particular circumstances include:
. . . the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.[8]
Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, [104].
It is also settled that careful attention must be given to the maximum penalty for at least three reasons: (1) it should be recognised that, as the legislature has fixed a maximum penalty, it is to be taken as reflecting the seriousness of the prescribed conduct; (2) the identification of that maximum penalty then permits a comparison between the worst possible case and that which the court is being asked to consider; (3) the maximum penalty should be recognised as providing a yardstick which should be taken and balanced with all other relevant factors.[9] Notwithstanding that a prescribed maximum penalty may be high and reflecting the amount necessary to ensure that general deterrence is met, the amount of a penalty should not be so high as to be oppressive.[10]
Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, [106], citing Markarian v The Queen (2005) 228 CLR 357, [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, [107].
I am satisfied that the conduct in the present case constituted a serious contravention of the Act.[11] The maximum penalty[12] for a single contravention of s.323 is, in the case of an individual, the sum of $12,600.
[11] See s.557A(1).
[12]See s.539(2), Item 10 of the Table, 5, 546(2)(a). By s.12 of the Act, the term “Penalty Unit’ has the same meaning as given by s.4AA of the Crimes Act 1914 (Cth). Relevantly, the term “Penalty Unit” means $210.
Deterrence is an important consideration in circumstances where the respondent had engaged the applicant to walk some 20 kms per day to hand out flyers promoting his own business. In directing the applicant to distribute flyers advertising Dan’s Home Care, the respondent appears to have had a direct pecuniary objective in promoting his own prospects of engagement to provide work of the kind that he advertised. The applicant, a backpacker, was an obvious prey to the offer of employment and a daily rate of pay. The class of persons to whom the advertisement was directed were vulnerable in a relevant sense.[13]
[13]FairWork Ombudsman v Ever Australia Pty Ltd [2015] FCCA 1999; FairWork Ombudsman v Java Spice Australia Pty Ltd [2015] FCCA 2930; FairWork Ombudsman v Jackson (No.2) [2016] FCCA 1181.
I accept that the appropriate penalty should be in an amount that will deter similar conduct by others seeking casual employees to place flyers for the promised reward of daily remuneration. The penalty must not be seen merely as a cost of doing business.
In the circumstances of this case an available inference, which I am prepared to draw, is that the respondent was prepared to ‘scam’ the applicant to continue to work on a daily basis for so long as it took him to twig to the reality that he was being taken advantage of. The applicant met the respondent on a daily basis to collect the flyers so that he could perform his day’s work. In those circumstances I regard the respondent’s conduct as being deliberate, brazen and unapologetic. There is no evidence of the respondent being in any way apologetic. Given the respondent’s failure to engage in the proceeding, there is no basis for concluding that he has exhibited any degree of co-operation. Thus, there is no basis for a conclusion that the respondent is entitled to any discount, either by reason of contrition or co-operation.
There is also little evidence as to the extent of the contraventions. Although I can find that the conduct was deliberate, I cannot find that it was widespread. There is no evidence suggesting that the respondent has been found to have contravened the Act on any earlier occasion. I cannot infer that there has been an extended or repeat course of conduct. I must therefore treat the case as one which involves a single course of conduct. Further, I take into account that the nature and extent of the loss in this case was confined to non-payment for a period of three day’s work. I also recognise, however, that a penalty should not be oppressive. Little is known of the respondent’s financial circumstances. I have had regard to the maximum penalty and to each of the reasons why careful consideration of that penalty is important in an evaluation of the penalty that is appropriate to these particulars circumstances.
In my judgment, a penalty of $3,000 should be imposed.
The applicant submitted that the penalty should be payable to the Fitzroy Legal Service Inc (ABN 13 421 440 211) which has acted throughout this matter on a pro bono basis. The court is authorised to make an order that a penalty, or a part thereof, be paid to the Commonwealth, a particular organisation or person[14] pursuant to s.546(3). I accept the submission that it is appropriate to order that the penalty be paid to Fitzroy Legal Service Inc (ABN 13 421 440 211).
[14]By s.2C of the Acts Interpretation Act 1901 (Cth), the term ‘person’ includes a body corporate.
Contrary to the applicant’s submissions, I am not satisfied that an order for costs is warranted.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 12 March 2019
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