Rasheduzzaman v Richmond 404 Pty Ltd trading as Smokin' Joe's Pizza & Grill
[2023] FedCFamC2G 38
Federal Circuit and Family Court of Australia
(DIVISION 2)
Rasheduzzaman v Richmond 404 Pty Ltd trading as Smokin’ Joe’s Pizza & Grill [2023] FedCFamC2G 38
File number(s): MLG 931 of 2019 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 1 February 2023 Catchwords: INDUSTRIAL LAW – Fair Work – claim alleging dismissal in contravention of a general protection – claim alleging non-payment of entitlements – non-participation in proceedings by respondents – application for default judgment and declarations against the respondents and for the payment of compensation and pecuniary penalties – whether default judgment should be ordered – whether relief sought is reasonably supported by materials before the Court – default judgment ordered – declarations made – considerations on penalty – penalties ordered – whether respondents pay applicant’s party-party costs – party-party costs ordered. Legislation: Crimes Act 1914 (Cth) s 4AA
Evidence Act 1995 (Cth) s 140
Fair Work Act 2009 (Cth) ss 3, 12, 44, 45, 125, 323, 340, 351, 352, 361, 368, 536, 539, 545, 546, 547, 550, 557, 570
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04, 13.05
Federal Circuit Court Rules 2001 (Cth) rr 6.14, 13.03A, 13,03B, 13.03C, Sch 1
Fair Work Regulations 2009 (Cth) reg 3.01
Migration Regulations 1994 (Cth) r. 1222
Occupational Health and Safety Act 2004 (Vic) s 21
Fast Food Industry Award (MA000003) cl 12.1
Cases cited: Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1
Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No.2) [2010] FCA 977
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333
Board of Bendigo Regional Institute of Technical and Further Education v Barclay 248 CLR 500; [2012] HCA 32
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
Community and Public Sector Union v Commonwealth [2006] FCAFC 176
Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39
Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574
Dafallah v Fair Work Commission [2014] FCA 328
Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365,
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301
Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14
Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1
Qantas Airways Ltd v Transport Workers Union of Australia (No 2) (2011) 211 IR 119
Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27
Speedo Holdings BV v Evans (No 2) [2011] FCA 1227
Squires v Flight Stewards Association of Australia (1982) 2 IR 155
Tran v Macquarie University (No.2) [2019] FCCA 2049
Yorke v Lucas [1985] HCA 65; (1984) 158 CLR, 667
Division: Division 2 General Federal Law Number of paragraphs: 167 Date of last submission/s: 9 November 2020 Date of hearing: Determined on the papers ORDERS
MLG 931 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD RASHEDUZZAMAN
Applicant
AND: RICHMOND 404 PTY LTD (ACN 618 528 680) T/A SMOKIN’ JOE'S PIZZA & GRILL
First Respondent
SURENDER SINGH
Second Respondent
AMAN SHARAN
Third Respondent
order made by:
HER HONOUR JUDGE C.E KIRTON Kc
DATE OF ORDER:
1 February 2023
THE COURT ORDERS THAT:
1.Pursuant to r.13.05(2)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) default judgment is entered for the Applicant MD Rasheduzzaman (Applicant) against Richmond 404 Pty Ltd (ACN 618 528 680) trading as Smokin’ Joe’s Pizza & Grill (First Respondent), Surender Singh (Second Respondent) and Aman Sharan (Third Respondent), (together, the Respondents).
AND THE COURT DECLARES THAT:
2.In the period between 20 November 2018 and 24 November 2018 the First Respondent contravened the following sections of the Fair Work Act 2009 (Cth) (FW Act):
(a)Section 44;
(b)Section 45;
(c)Section 323(1);
(d)Section 340(1);
(e)Section 351(1); and
(f)Section 352.
3.The Second Respondent and the Third Respondent are each persons involved in the contraventions of the First Respondent referred to in paragraph 2 above, pursuant to s.550(1) of the FW Act.
AND THE COURT FURTHER ORDERS THAT:
Compensation
4.Pursuant to s.545(2) of the FW Act the Respondents pay the Applicant compensation in the sum of $3,166.07 within 28 days of the date of this Order.
Pecuniary Penalties
5.The First Respondent pay penalties pursuant to s.546(1) of the FW Act for its involvement in the contraventions set out in Order 2 above in the sum of $12,500.
6.The Second Respondent pay penalties pursuant to s.546(1) of the FW Act for his involvement in the contraventions set out in Order 2 above in the sum of $5,000.
7.The Third Respondent pay penalties pursuant to s.546(1) of the FW Act for his involvement in the contraventions set out in Order 2 above in the sum of $5,000.
8.Pursuant to s.546(3)(b) of the FW Act, each of the Respondents pay their respective penalty amounts to Job Watch Inc within 60 days of the making of these Orders.
Interest
9.Pursuant to s.547(2) of the FW Act, the Respondents pay interest to the Applicant on the amount owed pursuant to Order 4 above within 28 days of this Order, with the interest to be calculated:
(a)In accordance with the applicable pre-judgment interest rate prescribed by the Federal Court of Australia; and
(b)From 24 November 2018, being the date the cause of action arose, to the date of this Order.
Costs
10.Pursuant to s.570(2)(b) of the FW Act, the Respondents pay the Applicant’s party-party costs of the proceeding fixed in the sum of $9,647 to Job Watch Inc within 60 days of the making of these Orders.
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
HER HONOUR JUDGE C.E. KIRTON KC
INTRODUCTION
This matter commenced by way of an Application – Fair Work Division and a Form 2 (Application), filed on 29 March 2019. The Applicant, Mr Rasheduzzaman (Applicant), alleges that Richmond 404 Pty Ltd (ACN 618 528 680) trading as Smokin’ Joe’s Pizza & Grill (First Respondent), Surender Singh (Second Respondent) and Aman Sharan (Third Respondent) (together, the Respondents), contravened provisions of the Fair Work Act 2009 (Cth) (FW Act).
Before the Court is an application for default judgment brought by the Applicant, who seeks orders that the Respondents be declared individually and collectively in default, and that default judgment be entered against the Respondents.
The applicable rules empowering the Court to make the orders sought by the Applicant are rr.13.04(2) and 13.05(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules), which came into operation on 1 September 2021. The Court documents filed by the Applicant’s Lawyers Job Watch Inc (Applicant’s Lawyers), in relation to the default judgment application refer to rr.13.03A(2) and 13.03B(2) of the Federal Circuit Court Rules 2001 (Cth) (2001 Rules), which were in force until 31 August 2021. As r.13.04(2) of the 2021 Rules is identical to r.13.03A(2) of the 2001 Rules, and r.13.05(2) of the 2021 Rules is identical to r.13.03B(2) of the 2001 Rules, I consider that the 2021 Rules operate in the same way as the 2001 Rules.
On 27 August 2020 the Applicant was granted leave pursuant to r.13.03C(1)(e) of the 2001 Rules to proceed undefended in relation to the Applicant’s default judgment application, due to the Respondents’ persistent failure to participate in the proceeding. It was also Ordered that the application for default judgment be determined on the papers.
The relief sought by the Applicant from the Respondents includes payment of compensation pursuant to s.545(2)(b) of the FW Act, payment of pecuniary penalties pursuant to s.546(1) of the FW Act, interest on the payment of any compensation pursuant to s.547(2) of the FW Act, and an order that the Respondents jointly pay the Applicant’s costs pursuant to s.570(2)(b) of the FW Act.[1] The Applicant also claims that pursuant to s.550 of the FW Act the Second Respondent and the Third Respondent are each persons involved in the First Respondent’s contraventions of the FW Act.
[1] Applicant’s Submissions as to Compensation, Penalties, Interest and Costs, filed 24 November 2020 (Applicant’s Second Submissions), [2].
ISSUES FOR DETERMINATION
The issues that are to be determined in this matter are whether:
(a)The Respondents are in default pursuant to r.13.04(2) of the 2021 Rules;
(b)The evidence merits default judgment being entered against the Respondents pursuant to r.13.05(2)(d) of the 2021 Rules;
(c)The First Respondent contravened any of the following provisions of the FW Act: ss.44; 45; 323(1); 340(1); 351(1); 352; and 536(1);
(d)The Second Respondent and the Third Respondent are each persons involved in the contraventions of the First Respondent referred to in sub-paragraph 6(c), pursuant to s.550 of the FW Act;
(e)The Respondents should pay the Applicant any compensation pursuant to s.545(2) of the FW Act;
(f)Any penalties should be imposed upon any of the Respondents pursuant to s.546(1) of the FW Act;
(g)The Respondents should pay the Applicant interest pursuant to s.547(2) of the FW Act on any compensation ordered to be paid to the Applicant pursuant to s.545(2) of the FW Act; and
(h)The Respondents should pay the Applicant’s costs of the proceeding pursuant to s.570(2)(b) of the FW Act.
SYNOPSIS
I have determined that:
(a)The Respondents are in default pursuant to r.13.04(2) of the 2021 Rules;
(b)The evidence merits default judgment being entered against the Respondents pursuant to r.13.05(2)(d) of the 2021 Rules;
(c)The First Respondent contravened the following provisions of the FW Act: ss. 44; 45; 323(1); 340(1); 351(1); and 352;
(d)The Second Respondent and the Third Respondent are each persons involved in the contraventions of the First Respondent referred to in sub-paragraph (c), pursuant to s.550(1) of the FW Act;
(e)Pursuant to s.545(2) of the FW Act the Respondents are to pay the Applicant compensation in the sum of $3,166.07 within 28 days of the date of the Orders;
(f)Pursuant to s.546(1) of the FW Act:
(i)The First Respondent is to pay to the Applicant’s Lawyers a pecuniary penalty of $12,500 within 60 days of the date of the Orders; and
(ii)The Second Respondent and the Third Respondent are to each pay to the Applicant’s Lawyers a pecuniary penalty of $5,000 within 60 days of the date of the Orders;
(g)The Respondents are to pay the Applicant interest pursuant to s.547(2) of the FW Act from 24 November 2018 on the sum of $3,166.07 compensation ordered to be paid to the Applicant pursuant to s.545(2) of the FW Act, within 28 days of the date of the Orders; and
(h)Pursuant to s.570(2)(b) of the FW Act, the Respondents are to pay the Applicant’s party-party costs of the proceeding fixed in the sum of $9,647 within 60 days of the date of the Orders.
BACKGROUND
The Applicant is an international student from Bangladesh who at all relevant times held a subclass 500 student visa pursuant to r.1222 of the Migration Regulations 1994 (Cth) (Visa). The Visa restricts the Applicant to working a maximum of 40 hours per fortnight while completing coursework.[2]
[2] Application, Fair Work Division, Form 2, filed 29 March 2019 (Application), Part G, [24], [1].
The First Respondent is an Australian company running a restaurant and takeaway food business under the franchised name ‘Smokin’ Joe’s Pizza & Grill’, at 440 Church Street, Richmond, in the State of Victoria (Restaurant). This address is also the registered office for the First Respondent (Registered Office).[3] The Second Respondent and the Third Respondent are the only directors, secretaries and shareholders of the First Respondent.[4]
[3] Affidavit of MD Rasheduzzaman (Applicant), filed 27 July 2020 (Applicant’s 27 July 2020 Affidavit), [2] and Annexure A-2.
[4] Application, Part G, [24], [2]; Applicant’s 27 July 2020 Affidavit, [2] and Annexure A-2.
The Applicant commenced employment with the First Respondent on 21 November 2018 as a casual pizza delivery driver and kitchenhand.[5] The Applicant ceased employment with the First Respondent on or about 24 November 2018.[6]
[5] Application, Part G, [24], [3] and [6]; Affidavit of the Applicant, filed 23 October 2020 (Applicant’s 23 October 2020 Affidavit), [1].
[6] Application, Part G, [24], [15]; Applicant’s 23 October 2020 Affidavit, [16].
The Applicant alleges that he entered into an oral agreement with the Third Respondent as to his job description on 20 November 2018, one (1) day before his first shift with the First Respondent (Agreement). It is alleged by the Applicant that according to the Agreement, the Applicant’s terms of employment were to be, inter alia that:
(a)His duties would be to clean the kitchen at the Restaurant and to conduct pizza deliveries;
(b)He would be paid an hourly rate of pay of $13 for his first two (2) weeks of employment, and an hourly rate of pay of $15 thereafter;
(c)He would be employed for 30 hours per week over a 15-week period. This corresponded with the Applicant’s university holiday break, during which time the conditions of the Visa permitted the Applicant to work unlimited hours; and
(d)He was to commence work on 21 November 2018.[7]
[7] Applicant’s 23 October 2020 Affidavit, [2]; Application, Part G, [24], [3].
At approximately 5:00 pm on the evening of 21 November 2018, the Applicant commenced his first shift with the First Respondent.[8] It is alleged that the Applicant was not provided with any training or safety instruction prior to the commencement of his duties. At approximately 10:00 pm, the Applicant deposed to falling off his motorbike in the rain whilst making a pizza delivery, resulting in scrapes to his legs and arms and damage to his motorbike.[9] After returning to the Restaurant, the Applicant’s injuries were treated and he was required by the Third Respondent to continue delivering pizzas for the remainder of his shift.[10]
[8] Applicant’s 23 October 2020 Affidavit, [3] and [4]; Application, Part G, [24], [6] and [7].
[9] Applicant’s 23 October 2020 Affidavit, [7] and [8]; Application, Part G, [24], [8].
[10] Applicant’s 23 October 2020 Affidavit, [9]; Application, Part G, [24], [9].
At approximately 2:30 pm the next day, being 22 November 2018, the Applicant returned to the Restaurant for his second shift at the request of the Second Respondent. However the Second Respondent did not permit the Applicant to commence working in the kitchen until 4:00 pm. At approximately 8:00 pm, the Applicant told the Second Respondent that he was feeling unwell as a result of the motorbike accident that had occurred on the previous evening. The Applicant was told by the Second Respondent that he was required to keep working despite feeling unwell. At approximately 8:40 pm, the Applicant told the Second Respondent that he needed to go home because he had a sore leg and was developing a fever and a cold from being out in the rain on the previous evening.[11]
[11] Applicant’s 23 October 2020 Affidavit, [10] and [14]; Application, Part G, [24], [10] and [13].
The Applicant was rostered to work his third shift at the Restaurant on 23 November 2018 from 6:00 pm, however he was feeling too unwell to work. The Applicant notified the Respondents via WhatsApp at 8:07 am that morning of his inability to work and the same day he attended his General Practitioner at Monash Health, who referred him to a psychologist.[12]
[12] Applicant’s 23 October 2020 Affidavit, [15] and Annexure A-4; Application, Part G, [24], [14].
On 24 November 2018, the Applicant was removed from the Respondents’ ‘WhatsApp’ group which was used for organising shifts at the Restaurant. In a telephone call to the Third Respondent on the same date, the Applicant was advised that he was dismissed from his employment and would not be paid for the hours worked on 21 November 2018 and 22 November 2018. The Applicant was advised by the Third Respondent to contact the Second Respondent should he have any further questions. The Applicant deposed that the Second Respondent did not answer his phone when he was called by the Applicant.[13]
[13] Applicant’s 23 October 2020 Affidavit, [16] – [17] and Annexure A-5; Application, Part G, [24], [15] and [16].
PROCEDURAL HISTORY
On 14 December 2018 the Applicant’s Lawyers lodged a Form 8, General Protections Application with the Fair Work Commission involving dismissal. On 29 January 2019, the Fair Work Commission conducted a telephone conference to attempt to resolve the dispute. The Second Respondent participated in the telephone conference on 29 January 2019. This conciliation conference was unsuccessful.[14]
[14] Applicant’s 27 July 2020 Affidavit, [1] and [3].
On 31 January 2019 Sandeep Sangwan of Sangwan Lawyers lodged a Form F53 Notice of Representative Commencing to Act. On that form Mr Sangwan indicated that he was acting for both the First Respondent and the Second Respondent.[15]
[15] Applicant’s 27 July 2020 Affidavit, [4].
On 6 February 2019 Mr Sangwan lodged a F8A Response Form on behalf of the First Respondent (Response). The contact person listed on the Response was listed as being the Second Respondent.[16] The Response alleged a number of alternative reasons for the termination of the Applicant’s employment. These allegations made on behalf of the First Respondent have been summarised by the Applicant’s Lawyers in the Application.[17] More will be said about these allegations later in these Reasons for Judgment.
[16] Applicant’s 27 July 2020 Affidavit, [5].
[17] Application, Part G, [24], [30] (a)-(e).
On 15 March 2015 the Fair Work Commission issued the Applicant with a Certificate under s.368(3)(a) of the FW Act (Section 368 Certificate).[18] The Applicant then filed the Application on 29 March 2019 alleging dismissal in contravention of a general protection.
[18] Applicant’s 27 July 2020 Affidavit, [4] – [6]; Certificate under Section 368, filed 29 March 2019.
The Applicant submits that the First Respondent, as his employer, contravened the following civil penalty provisions of the FW Act:
(a)Section 340(1), by taking adverse action against the Applicant in the form of dismissal for exercising a workplace right;
(b)Section 351(1), by taking adverse action against the Applicant in the form of dismissal as a result of a temporary physical disability;
(c)Section 351(1), by taking adverse action against the Applicant in the form of injuring him in his employment by not paying him his employment entitlements and/or subjecting him to unreasonable health and safety risks because of his race and/or national extraction and/or social origin;
(d)Section 352, by dismissing the Applicant because he was temporarily absent from work as a result of illness or injury of the kind prescribed by the Fair Work Regulations 2009 (Cth) (Regulations);
(e)Section 44, by failing to provide the Applicant with a Fair Work Information Statement as required by s.125 of the FW Act and the National Employment Standards;
(f)Section 45, by failing to pay the Applicant any wages or superannuation for the hours worked in contravention of the Fast Food Industry Award (MA000003) (Award);
(g)Section 323(1), by failing to pay the Applicant’s wages in full when they were due; and
(h)Section 536(1), by failing to provide the Applicant with payslips.[19]
[19] Applicant’s Outline of Submissions, filed 9 November 2020 (Applicant’s First Submissions), [1].
The Applicant also submits that the Second Respondent and the Third Respondent have also contravened the provisions of the FW Act referred to in the previous paragraph, as persons involved in the First Respondent’s contraventions pursuant to s.550(1) of the FW Act.[20]
[20] Applicant’s First Submissions, [2].
This matter has had a protracted procedural history due to difficulties the Applicant and the Applicant’s Lawyers encountered in serving the Respondents with Court documents and the Respondents’ failure to participate in the proceeding.
On 6 September 2019, the first Directions Hearing took place before me and there was no appearance by or on behalf of the Respondents. On that occasion I was not satisfied that any of the Respondents had been served with the Application in accordance with the relevant provisions of the 2001 Rules, which were applicable at the time. The matter was consequently adjourned to 8 October 2019 and an Order was made requiring the Applicant to serve a copy of the Orders made on 6 September 2019 on the Respondents (6 September 2019 Orders).
On 13 September 2019 the Applicant’s Lawyers filed:
(a)An Affidavit of Gabrielle Marchetti, Solicitor, affirmed on 13 September 2019 (13 September 2019 Marchetti Affidavit), deposing to the Applicant’s instructions that he had served the First Respondent and the Second Respondent with a copy of the 6 September 2019 Orders on 12 September 2019. The Applicant had also instructed Ms Marchetti that he had been unable to serve the Third Respondent with a copy of the 6 September 2019 Orders on 12 September 2019; and
(b)An Affidavit of the Applicant, affirmed on 13 September 2019, deposing that the Applicant served the First Respondent and the Second Respondent with the Application at the Registered Office on 12 September 2019 (Applicant’s 13 September 2019 Affidavit of Service).
On 17 September 2019 the Applicant filed an Affidavit of Attempted Service, affirmed on 17 September 2019 (Applicant’s 17 September 2019 Affidavit of Attempted Service), wherein the Applicant deposed to his unsuccessful attempt to serve the Third Respondent at the Third Respondent’s residential address in Thomastown in the State of Victoria. This address in Thomastown was the address listed as being the Third Respondent’s residential address in the records of the Australian Securities and Investment Commission, relating to the office holders and shareholders of the First Respondent.[21]
[21] Applicant’s 27 July 2020 Affidavit, [2], [15] and Annexure A-2.
On 17 September 2019, the Applicant filed an Application in a Case (17 September 2019 Application in a Case) seeking substituted service on the Third Respondent, who had thus far proved uncontactable. The 17 September 2019 Application in a Case was returnable on 8 October 2019.
On 8 October 2019, the Applicant was represented by Ms Marchetti, Solicitor, the Second Respondent appeared in person and there was no appearance by either the First Respondent or the Third Respondent. The Second Respondent advised the Court that the Third Respondent was overseas and would be returning to Australia in approximately one (1) month.[22] The Second Respondent also advised the Court that it had been his intention to engage a lawyer to act on behalf of the First Respondent, however his lawyer was not presently available.[23] The Second Respondent was informed that it was my strong recommendation that the First Respondent should engage a lawyer, given the quantum of the Applicant’s claim and the requirement for companies to be legally-represented.[24] It was also made clear to the Second Respondent that the Respondents had 28 days from 8 November 2019 in which to file their defences and that the matter would be referred to mediation.[25]
[22] Transcript (8.10.19) P2:L23-24.
[23] Transcript (8.10.19) P8:L9-40.
[24] Transcript (8.10.19) P8:L42-45.
[25] Transcript (8.10.19) P11:L33-45.
On 8 October 2019 I made Orders in relation to the 17 September 2019 Application in a Case, which may be relevantly summarised as follows (8 October 2019 Orders):
(a)Pursuant to r.6.14(1) of the 2001 Rules there be substituted service on the Third Respondent of: the Application; the Section 368 Certificate; the 6 September 2019 Orders; and the 8 October 2019 Orders;
(b)Service on the Third Respondent of the documents referred to in the preceding sub-paragraph was to be effected by electronic text message (SMS), email or Facebook;
(c)The Respondents were to file and serve their defences on or before 4 November 2019;
(d)The matter was referred to mediation to be concluded by 28 February 2020; and
(e)In the event that the proceeding did not settle at mediation, the Registrar was to conduct a case management conference immediately after the mediation to make further directions.
The 8 October 2019 Orders included the following notation:
A.The Second Respondent has advised the Court that he has spoken with the Third Respondent and that the Third Respondent is aware of today’s direction’s hearing.
On 17 October 2019, the Applicant filed an Affidavit of Service, affirmed by the Applicant on 17 October 2019 (Applicant’s 17 October 2019 Affidavit of Service). The Applicant deposed to serving the Third Respondent on 11 October 2019 with the documents in compliance with the 8 October 2019 Orders and that the Third Respondent had confirmed via SMS text message that he had received all the documents.[26]
[26] Affidavit of Service, affirmed and filed by the Applicant on 17 October 2019, [7].
On 22 November 2019 the parties were notified by the Court of a mediation to be held on 21 February 2020.[27]
[27] Applicant’s 27 July 2020 Affidavit, [23].
On 20 February 2020, the parties were notified by the Court that: as there had been no confirmation of attendance by the Respondents at the mediation; and as the Second Respondent had notified the Court that he was unwell and could not attend the mediation; the mediation was adjourned and re-listed to 5 May 2020.[28]
[28] Applicant’s 27 July 2020 Affidavit, [24].
On 29 April 2020 the Applicant’s Lawyers sent an email to the Court confirming the contact email addresses and mobile phone numbers for the Second Respondent and the Third Respondent.[29]
[29] Applicant’s 27 July 2020 Affidavit, [25].
On 4 May 2020, the day before the re-listed mediation date on 5 May 2020:
(a)At 12:48 pm the Applicant’s Lawyer sent an email to the Respondents, copied to the Court, advising that if the Respondents did not attend the mediation on 5 May 2020 the Applicant’s Lawyers intended to issue an application for default judgment;
(b)At 1:31 pm the Assistant to the Registrar who was to conduct the mediation on 5 May 2020 sent an email to the parties confirming details as to how the mediation would proceed on 5 May 2020;
(c)At 3:42 pm the Second Respondent sent an email to the Court advising that he was unwell and was unable to attend; and
(d)At 4:13 pm the Assistant to the Registrar who was to conduct the mediation on 5 May 2020, sent an email to the parties confirming that: “In the absence of a medical certificate, the Registrar has not granted your request to adjourn the mediation. Parties are expected to answer the Registrar’s call at 9:30 am tomorrow”.[30]
[30] Applicant’s 27 July 2020 Affidavit, [26(d)].
The Applicant has deposed that both he and the Applicant’s Lawyers were ready to participate in the mediation listed to commence on 5 May 2020 at 9:30 am. The Applicant has also deposed that he was advised on the morning of 5 May 2020 that the Court had been unable to contact either of the Second or Third Respondents. And accordingly that the mediation could not proceed.[31]
[31] Applicant’s 27 July 2020 Affidavit, [27].
The Mediation Report to the Court by Registrar Ryan on 5 May 2020 stated as follows:
On 8 October 2019 [the Court] ordered that this matter be mediated by 28 February 2020. The mediation was rescheduled from 21 February 2020 until today at the request of the second respondent. It was arranged to be conducted by telephone and I am satisfied that the respondents were aware of their obligation to attend. The mediation did not proceed today as the second and third respondents (who are also the directors of the first respondent) did not participate in the process.
The applicant’s solicitor has advised that her client intends to file an application seeking judgment in default as the respondents have not filed any defences as required by [the] orders made on 8 October 2019.
(Emphasis added)
On 27 July 2020 the Applicant’s Lawyers filed an Application in a Case seeking judgment in default against the Respondents (Default Judgment Application). The return date for the hearing of the Default Judgment Application was 25 August 2020. The Default Judgment Application seeks relief, which may be relevantly summarised as follows:
(a)That the Respondents are individually and collectively in default pursuant to rr.13.03A(2)(a) and (b) of the 2001 Rules;
(b)That there be judgment against the Respondents in accordance with rr.13.03B(2) and 13.03C(1) of the 2001 Rules, including:
(i)An order that the Respondents pay $11,692.59 in compensation to the Applicant for economic loss resulting from the contraventions of the FW Act; and
(ii)An order that the Respondents pay compensation to the Applicant for non-economic loss resulting from the contraventions of the FW Act;
(c)If default judgment is entered in the Applicant's favour, the matter be listed for a directions hearing on a date to be fixed for a timetable to be set for the filing of evidence and submissions in respect of the determination of penalties; and
(d)The Respondents pay the Applicant’s costs.
On 27 July 2020 the Applicant’s Lawyers also filed an Affidavit signed by the Applicant on 27 July 2020, in support of the Default Judgment Application (Applicant’s 27 July 2020 Affidavit). The Applicant’s 27 July 2020 Affidavit was filed with the Court in accordance with Joint Practice Direction 2: JPD of 2020 – Special Measures in Response to COVID-19 Electronic filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents to Affidavits, and Fees (Joint Practice Direction 2).
On Monday 27 July 2020, the Applicant’s Lawyers filed an Affidavit of Service signed by the Applicant, which was filed pursuant to Joint Practice Direction 2 (Applicant’s 27 July 2020 Affidavit of Service). The Applicant’s 27 July 2020 Affidavit of Service deposed to service by the Applicant and the Applicant’s Lawyers of the Default Judgment Application and the Applicant’s 27 July 2020 Affidavit on each of the Respondents late on Friday 24 July 2020.
On 27 July 2020, a Directions Hearing took place before me at which the Applicant was represented by Ms Marchetti and there was no appearance by or on behalf of the Respondents. On 27 July 2020 Orders were made which may be relevantly summarised as follows (27 July 2020 Orders):
(a)The matter was adjourned to 25 August 2020;
(b)The Applicant was to serve the Respondents with a sealed copy of: the Default Judgment Application; the Applicant’s 27 July 2020 Affidavit; and the 27 July 2020 Orders;
(c)The First Respondent was to be served by sending the documents referred to in sub-paragraph (b) to the Registered Office by pre-paid ordinary post or tracked post;
(d)The Second Respondent was to be served by sending the documents referred to in sub-paragraph (b) to two (2) specified email addresses;
(e)The Third Respondent was to be served by sending the documents referred to in sub-paragraph (b) to a specified email address and mobile phone number; and
(f)The Respondents were to be taken to have been served in accordance with r.6.14 of the 2001 Rules upon the Applicant filing an affidavit of service verifying the steps taken to comply with sub-paragraphs (c) to (e).
The 27 July 2020 Orders included the following notation:
AND THE COURT NOTES THAT in the event the Respondents fail to appear, or fail to have a legal representative appear on their behalf on 25 August 2020, the Court may make the orders sought in the [Default Judgment Application].
On 21 August 2020, the Applicant’s Lawyers filed an Affidavit of Service in the name of the Applicant, which was filed pursuant to Joint Practice Direction 2 (Applicant’s 21 August 2020 Affidavit of Service). The Applicant’s 21 August 2020 Affidavit of Service indicated that service on the Respondents took place in compliance with the 27 July 2020 Orders.
The matter next came before the Court on 27 August 2020 by video link. The Applicant was represented by Ms Marchetti and there was no appearance by or on behalf of any of the Respondents. On 27 August 2020 Orders were made in relation to the Default Judgment Application, which may be relevantly summarised as follows (27 August 2020 Orders):
(a)The Applicant was given leave pursuant to r.13.03C(1)(e) of the 2001 Rules to proceed undefended in relation to the Default Judgment Application;
(b)The Applicant was to file and serve any affidavit evidence relating to the calculation of the exact quantum of compensation that was sought in order 2 of the Default Judgment Application (including non-economic loss), by 8 September 2020;
(c)The Applicant was to file an outline of written submissions relating to the orders sought in the Default Judgment Application by 29 September 2020;
(d)The Default Judgment Application was to be determined on the papers; and
(e)The matter was listed for mention on 9 November 2020.
On 8 October 2020 at 9:33 pm, an email was sent to the Chambers of my Associates bearing the Second Respondent’s name. This email was sent in response to an email from the Chambers of my Associates confirming listing details for a Directions Hearing in this matter scheduled for 9:30 am on 9 October 2020. This email bearing the Second Respondent’s name read as follows:
Gd morning me lords
We are able to attend the hearing bce everything is closed we tried to our lawyer he is now in overseas n we are waiting him come down procedure our case or other hand if court Court can provide us legal aid bce atm my business is shut n their is no business afffeted from COVID 19
I beg to you can u give me next year February around we can proceed the case ASAP n finish this matter ASAP tnx A lot
(As written)
On 9 October 2020, the Directions Hearing proceeded before me by video link. The Applicant was represented by Ms Marchetti and there was no appearance by or on behalf of any of the Respondents. Orders were made extending the timetable pursuant to the 27 August 2020 Orders for the Applicant: to file and serve any affidavit evidence by 23 October 2020; and to file written submissions as to the quantum of compensation sought in the Default Judgment Application by 30 October 2020.
On 23 October 2020, the Applicant’s Lawyers filed an Affidavit, signed by the Applicant, outlining the history of the matter and the compensation sought by the Applicant (Applicant’s 23 October 2020 Affidavit). The Applicant’s 23 October 2020 Affidavit was filed pursuant to Joint Practice Direction 2.
On 9 November 2020 the Applicant’s Lawyers filed an Outline of Submissions (Applicant’s First Submissions).
On 9 November 2020, a Mention proceeded by video link. The Applicant was represented by Ms Marchetti and there was no appearance by or on behalf of any of the Respondents. On 9 November 2020 the following Orders were made (9 November 2020 Orders):
(a)Judgment was reserved; and
(b)The Applicant was to file and serve any further affidavits and written submissions in relation to penalties, costs, compensation and interest by 23 November 2020.
On 23 November 2020, the Applicant’s Lawyers filed an Affidavit affirmed by the Applicant on 18 November 2020 (Applicant’s 23 November 2020 Affidavit). On 24 November 2020, the Applicant’s Lawyers filed Submissions as to Compensation, Penalties, Interest and Costs (Applicant’s Second Submissions).
DOCUMENTS RELIED ON BY THE APPLICANT
In support of the application for default judgment the Applicant relied upon the following documents:
(a)The Application;
(b)The Default Judgment Application;
(c)The Applicant’s 27 July 2020 Affidavit;
(d)The Applicant’s 23 October 2020 Affidavit;
(e)The Applicant’s First Submissions;
(f)The Applicant’s 23 November 2020 Affidavit; and
(g)The Applicant’s Second Submissions.
CONSIDERATION
First, I will consider if a declaration should be made by this Court that the Respondents are in default pursuant to r.13.04(2) of the 2021 Rules (r.13.03A(2) of the 2001 Rules). Second, I will consider if the evidence before the Court merits default judgment being entered against the Respondents pursuant to r.13.05(2) of the 2021 Rules (r.13.03B(2) of the 2001 Rules), and if so, I will then consider the quantum of any compensation, interest, costs and penalties to be imposed upon the Respondents as a result of such contraventions.
Are the Respondents in Default?
The Applicant submits that the Respondents are individually and collectively in default pursuant to rr.13.03A(2)(a) and (b) of the 2001 Rules.[32] As noted in paragraph [3] of these Reasons for Judgment, these 2001 Rules are identical to rr.13.04(2)(a) and (b) of the 2021 Rules, now in force.
[32] Application in a Case, filed 27 July 2020 (Default Judgment Application), ‘Orders Sought’, [1].
Rule 13.04 of the 2021 Rules provides as follows:
13.04 When a party is in default
(1) […]
(2) For the purposes of rule 13.05, a respondent is in default if the respondent:
(a) has not satisfied the applicant’s claim; and
(b) fails to:
(i)give an address for service before the time for the respondent to give an address has expired; or
(ii)file a response before the time for the respondent to file a response has expired; or
(iii)comply with an order of the Court in the proceeding; or
(iv)file and serve a document required under these Rules; or
(v)produce a document as required by Part 14; or
(vi)do any act required to be done by these Rules; or
(vii)defend the proceeding with due diligence.
The extensive procedural history of this matter set out in these Reasons for Judgment under the heading ‘Procedural History’ illustrates the lack of participation in these proceedings by the Respondents. At no stage have the Respondents provided any address for service to the Court or filed any material. The only step taken by the Respondents to defend these proceedings was the attendance by the Second Respondent at the Mention on 8 October 2019 and the email sent to the Chambers of my Associates on 9 October 2020. Neither of these instances of contact amount to an arguable case and demonstrate a lack of appreciation by the Respondents for the seriousness of these Court proceedings. The Respondents have been given ample opportunity over a period of approximately two (2) years to participate in these proceedings and have chosen not to do so in any meaningful way.
I am also satisfied that the Respondents have been notified of the proceedings, and of each of the listings before this Court, based on the following evidence:
(a)The 13 September 2019 Marchetti Affidavit, deposing to the 6 September 2019 Orders being served by hand on the First Respondent and the Second Respondent on 12 September 2019;[33]
[33] Affidavit of Gabrielle Marchetti, affirmed and filed 13 September 2019, [2].
(b)The Applicant’s 13 September 2019 Affidavit of Service, deposing to the Application, the Section 368 Certificate and the 6 September 2019 Orders being served by hand on the First Respondent and the Second Respondent, at the Registered Office on 12 September 2019;
(c)The Applicant’s 17 September 2020 Affidavit of Attempted Service, deposing to the Applicant’s attempted service of the Application, the Section 368 Certificate and the 6 September 2019 Orders on the Third Respondent on 17 September 2019;
(d)The Applicant’s 17 October 2019 Affidavit of Service, deposing to the Application, the Section 368 Certificate, the 6 September 2019 Orders and the 8 October 2019 Orders being served on the Third Respondent on 17 October 2019 by substituted service via email, Facebook message and electronic SMS. Substituted service was effected pursuant to Order 2 of the 8 October 2019 Orders;
(e)The Applicant’s 27 July 2020 Affidavit of Service, deposing to service of the Default Judgment Application and the Applicant’s 27 July 2020 Affidavit, by hand on the Second Respondent at the Registered Office on 24 July 2020; and
(f)The Applicant’s 21 August 2020 Affidavit of Service deposing to service of the Default Judgment Application, the Applicant’s 27 July 2020 Affidavit and the 27 July 2020 Orders on the Respondents as follows:
(i)Via email to the Second Respondent and Third Respondent on 27 July 2020;
(ii)Via registered post to the Registered Office on 31 July 2020;
(iii)Via text message to the Third Respondent’s last known mobile number on 6 August 2020; and
(iv)Via WhatsApp message to the Third Respondent’s last known mobile number on 6 and 12 August 2020.
By reason of the forgoing I find that the Respondents have:
(a)Not satisfied the Applicant’s claim: r.13.04(2)(a); and
(b)Failed to give an address for service, as required by r.13.04(2)(b)(i) or at all; and
(c)Failed to file a response, as required by r.13.04(2)(b)(ii) or at all; and
(d)Failed to comply with orders of the Court in the proceeding, as required by r.13.04(2)(b)(iii); and
(e)Failed to file and serve documents as required under the 2021 Rules, as required by r.13.04(2)(b)(iv); and
(f)Failed to do acts required to be done pursuant to the 2021 Rules, as required by r.13.04(2)(b)(vi); and
(g)Failed to defend the proceeding with due diligence, as required by r.13.04(2)(b)(vii) or at all.
I therefore consider that the Respondents have satisfied rr.13.04(2)(a) and 13.04(b)(i)-(iv), (vi) and (vii) of the 2021 Rules. I therefore determine that it is appropriate to make an order in favour of the Applicant pursuant to r. 13.05(2)(d) of the 2021 Rules for judgment in default against each of the Respondents.
Contraventions
The discretion to award default judgment against a respondent must be exercised with caution Speedo Holdings BV v Evans (No 2) [2011] FCA 1227, [20]. Though I consider that it is appropriate to award default judgment in this matter, I may not just acquiesce to all the claims made by the Applicant and make all orders sought: I must first be satisfied that the evidence before the Court substantiates the claims made.
The contraventions of the FW Act claimed by the Applicant have been set out in these Reasons for Judgment at paragraphs [20] and [21]. Each breach of an obligation imposed by the FW Act is a separate contravention, however they may be summarised as falling into two (2) general categories of contravening conduct by the Respondents being: the dismissal of the Applicant from his employment with the First Respondent; and the non-payment of the Applicant’s entitlements by the First Respondent, including wages. All contraventions claimed by the Applicant are civil penalty provisions pursuant to s.539 of the FW Act.
I will now turn to each category of contravention, the first being the dismissal of the Applicant from the First Respondent’s Employment.
Category 1: Dismissal from the First Respondent’s Employment
The Applicant claims that he was dismissed from the First Respondent’s as a result of his injuries sustained in the motorcycle accident on 21 November 2018, which amounted to breaches of ss. 340(1), 351(1) and 352 of the FW Act.
Section 340(1) FW Act
Section 340(1) of the FW Act provides as follows:
Section 340 Protection
340(1) A person must not take adverse action against another person:
(a) because the other person
(i)has a workplace right; or
(ii)has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
[…]
Adverse action may include dismissing an employee: s.342(1) FW Act. The exercising of a workplace right need not be the sole reason for the dismissal: s.360 FW Act. However the exercising of the workplace right must be a substantial and operative reason for the dismissal: Board of Bendigo Regional Institute of Technical and Further Education v Barclay 248 CLR 500, [104]; [2012] HCA 32, [104].
The Applicant submitted that he had a workplace right because he was entitled to the benefit of a workplace law: s.341(1)(a) FW Act. The relevant entitlement under a workplace law claimed by the Applicant is s.21(1) of the Occupational Health and Safety Act 2004 (Vic) (OHS Act): s.12 FW Act. Section 21(1) of the OHS Act, in force as at November 2018 when the alleged contraventions took place, relevantly reads as follows:
21 Duties of employers to employees
(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
[…]
The adverse action claimed to have been taken is the dismissal of the Applicant as a result of the Applicant leaving work early on 22 November 2018. This dismissal is detailed at paragraphs [13] to [15] of these Reasons for Judgment.
It is submitted by the Applicant that the exercise of his workplace right was a substantial and operative reason for dismissal, demonstrated by the “temporal proximity between the Applicant exercising his workplace right and the Applicant being dismissed”.[34] I am satisfied that the Applicant’s dismissal came about as a result of his failure to attend work on 23 November 2019, which in turn was as a result of the injuries he sustained in his motorcycle accident on 21 November 2019.
[34] Applicant’s First Submissions, [9(c)].
The Applicant has submitted that as the Respondents have not disputed any of the allegations of contraventions in relation to dismissal it must be presumed that the Respondents took adverse action against the Applicant: s.361 of the FW Act.[35]
[35] Applicant’s First Submissions, [19].
I accept the submissions made by the Applicant and determine that the First Respondent contravened s.340(1) of the FW Act.
Section 351(1) FW Act
An employer must not take adverse action against an employee, including by dismissing the employee because of the employee’s disability: ss. 342(1) and 351(1) FW Act.
Section 351(1) of the FW Act provides as follows:
Section 351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) […]
The Applicant submits that as a result of falling off his motor cycle in the course of his employment and subsequently being required to continue delivery duties in the rain for an extended period on 21 November 2018, he suffered cuts, bruises and general soreness, as well as other cold-like symptoms.[36] These injuries were temporary and did not affect the Applicant’s ongoing ability to perform the inherent requirements of his role: cf. s.351(2)(b) FW Act.
[36] Applicant’s 23 October 2020 Affidavit, [9], [15] and Annexure A-3.
The Applicant also submits that his temporary physical disability was a substantial and operative reason for his dismissal, as was demonstrated by:
(a)The Second Respondent pressuring the Applicant to continue working on the evening of 22 November 2018, after the Applicant had advised that he was unwell;
(b)The Applicant being dismissed on 24 November 2018, after advising the Second Respondent that he could not complete his shift on 22 November 2018 and advising that he could not attend his shift on 23 November 2018 due to physical injury and illness; and
(c)The temporal connection between the First Respondent becoming aware of the Applicant’s physical disability and dismissing the Applicant.[37]
[37] Applicant’s First Submissions, [13].
The Applicant further submits that the Respondents took adverse action against him by injuring him in his employment: s.342(1) FW Act. ‘Injury’ to employment is widely interpreted as any injury of a compensable kind: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1, [4]; Squires v Flight Stewards Association of Australia (1982) 2 IR 155, [164]. Denying an employee the benefit of their contractual rights is one such injury: Community and Public Sector Union v Commonwealth [2006] FCAFC 176, [32]. The Respondents failed to pay the Applicant in accordance with the Award or at all.
The Applicant additionally submits that the Respondents took adverse action against the Applicant because: of his race, being a Bangladeshi; and/or his national extraction, being his Bangladesh nationality; and/or his social origin, being an international student on a temporary visa, who was performing a job that the Respondents regarded as being a menial job.[38]
[38] Applicant’s 23 October 2020 Affidavit, [18]; Applicant’s First Submissions, [14].
The Respondents have not disputed any of the allegations of contraventions in relation to the dismissal and it must therefore be presumed that the Respondents took adverse action against the Applicant: s.361 of the FW Act.
I accept the submissions made by the Applicant and determine that the First Respondent contravened s.351(1) of the FW Act.
Section 352 FW Act
An employer must not dismiss an employee because the employee is temporarily absent from work due to an illness or injury of a kind prescribed by the Regulations: s.352 FW Act. Regulation 3.01 of the Regulations deals with temporary absences, illness or injury. Regulation 3.01 provides as follows:
Regulation 3.01 Temporary Absence – Illness or injury
3.01(1)For section 352 of the Act, this regulation prescribes kinds of illness or injury.
3.01(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
3.01(3) A prescribed kind of illness or injury exists if the employee:
(a) is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b) complies with those terms.
[…]
The Applicant submits that as he was dismissed from his employment on 24 November 2018 by the Second Respondent and the Third Respondent, with immediate effect he could not supply the medical certificate that he obtained confirming that he visited his general practitioner on 23 November 2018.[39] The Applicant was therefore unable to satisfy the requirements of reg. 3.01(2)(a) or (b).
[39] Applicant’s 23 October 2020 Affidavit, [15] and Annexure A-4.
The Applicant further submits that the intention of beneficial legislation such as the FW Act is to provide an opportunity for a dismissed employee to obtain a remedy in respect of dismissal, and not for extreme interpretations of the FW Act to prevent former employees from obtaining a remedy: Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207, [68].[40]
[40] Applicant’s First Submissions, [18].
The Respondents have not disputed any of the allegations of contraventions in relation to the dismissal and it must therefore be presumed that the Respondents took adverse action against the Applicant: s.361 of the FW Act.
I accept the submissions made by the Applicant and determine that the First Respondent contravened s.352 of the FW Act.
Conclusion Category 1: Dismissal from the First Respondent’s Employment
The Court will accordingly make declarations in respect of contraventions by the First Respondent of ss. 340(1), 351(1) and 352 of the FW Act.
Category 2: Non-Payment of Entitlements
The Applicant claims that: the Respondents failed to provide him with a Fair Work Information Statement in breach with ss.44 and 125 of the FW Act; failed to pay him any wages or superannuation as required by the Award in breach of s.45 of the FW Act; failed to pay any wages in full when they were due in breach of s.323(1) of the FW Act; and failed to provide the Applicant with any pay slips in breach of s.536(1) of the FW Act.[41]
[41] Applicant’s First Submissions, [20].
Sections 44 and 125 FW Act
Section 44(1) of the FW Act provides that an employer must not contravene a provision of the National Employment Standards. Section 125(1) of the FW Act provides that an employer must give each employee a Fair Work Information Statement before the employee starts employment, or as soon as practicable thereafter.
The Applicant deposed at [5] of the Applicant’s 23 October 2020 Affidavit that he was not provided with any written documentation by the Respondents upon the commencement of his employment with the First Respondent, and in particular he did not receive a Fair Work Information Statement.
I therefore determine that the Fist Respondent Contravened s.44(1) of the FW Act by failing to provide the Applicant with a Fair Work Information Statement in accordance with s.125(1) of the FW Act.
Section 45 FW Act
Section 45 of the FW Act provides that a person must not contravene a term of a modern award. The Award is the relevant modern award for the purposes of s.45 of the Act in this proceeding.
The Applicant deposed at [17] of the Applicant’s 23 October 2020 Affidavit that the Respondents refused to pay him any wages for the hours that the Applicant worked on 21 and 22 November 2018.
I therefore determine that the Fist Respondent contravened s.45 of the FW Act by failing to pay the Applicant the wages that he earned on 21 and 22 November 2018 in accordance with the Award or at all.
Section 323(1) FW Act
Section 323 of the FW Act provides as follows:
Section 323 Method and Frequency of Payment
323(1)An employer must pay and employee amounts payable to the employee in relation to the performance of work:
(a)in full (except as provided by section 324); and
(b)in money by one, or a combination of the methods referred to in subsection (2); and
(c)at least monthly.
323(2) The methods are as follows:
(a)cash;
(b)cheque, money order, postal order or similar order, payable to the employee;
(c)the use of electronic funds transfer system to credit an account held by the employee;
(d)a method authorised under a modern award or an enterprise agreement.
323(3)Despite paragraph 1(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.
The Applicant deposed at paragraphs [17] and [18] of the Applicant’s 23 October 2020 Affidavit that the Respondents refused to pay him any wages for the hours that the Applicant worked on 21 and 22 November 2018.
I therefore determine that the First Respondent contravened s.323(1) of the FW Act by failing to pay the Applicant the wages that he earned on 21 and 22 November 2018 in accordance with s.323(1) of the FW Act or at all.
Section 536(1) of the FW Act
Section 536(1) of the FW Act provides as follows:
Section 536 Employer Obligations in Relation to Pay Slips
536(1)An employer must give a payslip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
As discussed above, the Applicant deposed in the Applicant’s 23 October 2020 Affidavit that the Respondents refused to pay him any wages for the hours that the Applicant worked on 21 and 22 November 2018. I have also determined that the First Respondent contravened s.323(1) of the FW Act by failing to pay the Applicant the wages that he earned on 21 and 22 November 2018 in accordance with s.323(1) of the Act or at all.
Section 536(1) of the FW Act requires that the employer must have made a payment to an employee in relation to the performance of work. In this case the First Respondent has not made any payment to the Applicant for the performance of work. By reason of the foregoing I determine that the First Respondent has not contravened s.536(1) of the FW Act.
Conclusion Category 2: Non-Payment of Entitlements
The Court will accordingly make declarations in respect of contraventions by the First Respondent of ss. 44(1), 45 and 323(1) of the FW Act.
Accessorial Liability of the Second Respondent and the Third Respondent
The Applicant also claims that pursuant to s.550 of the FW Act the Second Respondent and the Third Respondent are each persons involved in the First Respondent’s contraventions of the FW Act.
Section 550 of the FW Act provides as follows:
Section 550Involvement in Contraventions Treated in Same Way as Actual Contraventions
550(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
550(2)A person is involved in a contravention of a civil penalty provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned or party to the contravention; or
(d)has conspired with others to effect the contravention.
In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the relevant conduct with the relevant intention: Yorke v Lucas [1985] HCA 65; (1984) 158 CLR, 667 (Yorke v Lucas). In order to have the requisite intention, the person must have knowledge of the essential matters which go to make up the relevant events: Yorke v Lucas, 667; Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, [176].
In this case there is significant unchallenged evidence that the Second Respondent and Third Respondent had the requisite intention for the purposes of s.550(2)(a) of the FW Act, and that they each aided, abetted, counselled and procured the First Respondent’s contraventions of the FW Act.
At the relevant time the Second Respondent and the Third Respondent were the directors, shareholders and secretaries of the First Respondent. The Applicant’s 23 October 2020 Affidavit deposes to the activities of each of the Second Respondent and the Third Respondent. In particular:
(a)The Third Respondent:
(i)Failed to provide a Fair Work Information Statement when the Applicant commenced his employment;
(ii)Failed to provide any occupational health and safety training when the Applicant commenced on work on 21 November 2018;
(iii)Failed to provide a safe workplace; removed the Applicant from the WhatsApp group on 24 November 2018; and
(iv)On 24 November 2018 told the Applicant that he was dismissed and that he would not be paid for work which he had performed on 21 and 22 November 2018.[42]
[42] Applicant’s First Submissions, [23(a)]; Applicant’s 23 October 2020 Affidavit, [2] – [7], [16] and [17].
(b)The Second Respondent:
(i)Asked the Applicant to come to work early on 22 November 2018 and then deliberately made the Applicant wait to commence work, so that the Second Respondent could talk to the Applicant about an illegal visa sponsorship proposal, which would involve the Applicant working at an hourly rate of $12 an hour for a month, and also for four (4) hours a day for free for a period of two (2) years. The Applicant said he was not interested in this offer;[43]
(ii)Told the Applicant that the Second Respondent would decide how much the Applicant was paid;[44]
(iii)Told the Applicant on 22 November 2018 that if anyone asked the Applicant about his employment with the First Respondent, the Applicant should say that he had only commenced employment on 22 November 2018 (the day after the motor bike accident). The Second Respondent also told the Applicant to carry around the Applicant’s own individual Tax File Number and Australian Business Number “just in case” and “so no one gets in trouble”;[45]
(iv)Told the Applicant to keep working on 22 November 2018, after the Applicant had told him that he was feeling unwell because of the motor bike accident the previous day;[46] and
(v)Refused to take the Applicant’s mobile phone calls on 24 November 2018, immediately after the Applicant had been told by the Third Respondent that he had been dismissed and that he would not be paid for work which he had performed on 21 and 22 November 2018.[47]
[43] Applicant’s 23 October 2020 Affidavit, [10] – [13].
[44] Applicant’s 23 October 2020 Affidavit, [11].
[45] Applicant’s 23 October 2020 Affidavit, [12].
[46] Applicant’s 23 October 2020 Affidavit, [15].
[47] Applicant’s 23 October 2020 Affidavit, [17].
By reason of the foregoing, I therefore determine that pursuant to s.550 of the FW Act each of the Second Respondent and the Third Respondent were persons involved in the First Respondent’s contraventions of ss.44, 45, 323(1), 340(1), 351(1) and 352 of the FW Act. A declaration will be made accordingly.
Compensation
Section 545(1) of the FW Act gives the Court wide discretion to “make any order the court considers appropriate if the court is satisfied that a person has contravened […] a civil remedy provision”. Section 545(2)(b) provides that the Court may make “an order awarding compensation for loss that a person has suffered because of the contravention”.
The Applicant claims compensation for the losses he has suffered because of the Respondents’ contraventions, pursuant to s.545(2)(b) of the FW Act.[48]
[48] Applicant’s Second Submissions, [2(a)] and [4].
The Applicant seeks the following amounts in compensation:[49]
(a)$327.87 in unpaid wages for the period 21 and 22 November 2019 pursuant to the Award;[50]
(b)$11,363.13 for future economic loss;
(c)$2,572.70 in respect of necessary repairs to the Applicant’s motorbike; and
(d)$5,000.00 for non-economic loss in respect of the “depression, anxiety, frustration, loneliness and isolation caused by the Respondents’ contraventions”.[51]
[49] Applicant’s Second Submissions, [7].
[50] Applicant’s 23 October 2020 Affidavit, [19(a)].
[51] Applicant’s Second Submissions, [7(d)].
In considering an award of compensation, I have had regard to the comments of his Honour Barker J in Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333 at [423] that an order awarding compensation necessarily requires consideration of an “appropriate causal connection between the contravention and the loss claimed”.
I will now turn to consider each of the Applicant’s separate claims for compensation pursuant to s.545(2)(b) of the FW Act.
Unpaid Wages – $327.87
I consider first the Applicant’s claim for $327.87 for unpaid wages. This amount is claimed pursuant to the Award and is calculated on the basis of $25.98 per hour for 11 hours ($285.78) plus $28.06 for 1.5 hours ($42.09).[52]
[52] Applicant’s 23 October 2020 Affidavit, [19(a)].
The Applicant’s employment with the First Respondent lasted for only two (2) days. At the commencement of his employment, the Applicant and the Third Respondent entered into the Agreement. It was a term of the Agreement that the Applicant would be employed by the First Respondent for 30 hours a week. I therefore find that the Applicant had entitlements under the Award as a part-time employee, as he had “reasonable predictable hours of work”: Award, cl.12.1(b). I am satisfied that the evidence before the Court reasonably supports an order that the Respondents pay to the Applicant $327.87 in unpaid wages for the two (2) days the Applicant was in the First Respondent’s employ, being 21 and 22 November 2018.
An Order will be made that the Respondents pay the Applicant the sum of $327.87 accordingly.
Future Economic Loss – $11,363.13
I now consider the Applicant’s claim for $11,363.13 for future economic loss. This amount is calculated on the basis of $25.98 per hour for 30 hours a week for 15 weeks, less $327.87 for the hours the Applicant worked on 21 and 22 November 2018.[53]
[53] Applicant’s 23 October 2020 Affidavit, [19(b)].
In the case of Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1, Lee J considered factors relevant to the award of compensation and noted that the Court will:
[…] have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened […] The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.[54]
(Emphasis added)
[54] Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1, 9.
This approach was cited with approval by Mortimer J in Dafallah v Fair Work Commission [2014] FCA 328 (Dafallah) at [158]. In that case, her Honour emphasised the importance of considering the evidentiary foundation for an order for compensation and the legal rights of an employer to bring to an end an employment relationship.[55]
[55] Dafallah v Fair Work Commission [2014] FCA 328, [161] – [162].
There is no evidence before the Court which supports the assertion that the Applicant’s employment would definitely have continued for 15 weeks, beyond the Applicant’s evidence that there was the verbal Agreement which existed between the parties. The Applicant had worked for the First Respondent for only two (2) days when his employment was terminated. A variety of factors exist when new employment is commenced which may impact upon the tenure of such employment. Further, there is no evidence before the Court in relation to: the Applicant’s ability to obtain other employment; his efforts to do so after his employment with the First Respondent ceased; or whether the Applicant in fact obtained other employment after his employment with the First Respondent ceased.
I therefore consider that the amount of $2,338.20 is appropriate in the circumstances of this case. This amount represents 30 hours of work at $25.98 an hour for a period of three (3) weeks. This takes into account the limited nature of the Applicant’s evidence and the length of the Applicant’s actual employment with the First Respondent.
An Order will be made that the Respondents pay the Applicant the sum of $2,338.20 accordingly.
Repairs to Motorbike – $2,572.70
The Applicant claims the sum of $2,572.70 as a result of necessary repairs to his motorbike, as a result of the accident on 21 November 2018.[56]
[56] Applicant’s 20 October 2020 Affidavit, [8] and Annexure A-2; [19(c)].
The only evidence before the Court in relation to this claim is paragraphs [8] and [19(c)] of the Applicant’s 23 October 2020 Affidavit and Annexure ‘A-2’ to this Affidavit (Annexure A2). Annexure A2 purportedly depicts a quote for repairs required to be made to the Applicant’s motorbike which was damaged in the accident described at [12] of these Reasons for Judgment. Annexure A2 appears to be a photo of a quote taken by the Applicant. The quality of the photograph renders the quote difficult to decipher. Further there is no evidence before the Court from a repairer or qualified person to explain what proportion of the repairs are general maintenance only, and which repairs were as a result of the accident which occurred on 21 November 2018 during the Applicant’s first shift with the First Respondent. Further included in Annexure A2 is a photo of a panel of some vehicle with scrapes on the panel. There is no photo indicating that the photo is of a motorbike. There is also no evidence before the Court that the Applicant was the registered owner of any motorbike.
Having regard to s.140 of the Evidence Act 1995 (Cth) I am far from satisfied on the balance of probabilities as to the Applicant’s evidence that he suffered damage in the sum of $2,572.70 to a motorbike that he owned, as a result of the accident which occurred on 21 November 2018. Therefore the evidence does not persuade me to the relevant civil standard of proof that it is appropriate to make any order for the payment of compensation in relation to this claim.
Non-Economic Loss – $5,000
The Applicant has deposed that his claim for non-economic loss is in relation to “hurt and humiliation caused by the Respondents’ contraventions which directly resulted in me feeling a high level of disappointment and anger, shock and distress”.[57] In the Applicant’s Second Submissions, the Applicant’s Lawyers relied upon the cases of Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 (Sayed) and Tran v Macquarie University (No.2) [2019] FCCA 2049 as examples of circumstances in which Courts have made compensation orders for non-economic loss.[58] It is noted that the length of employment in both cases was three (3) months and ten (10) years respectively.
[57] Applicant’s 23 October 2020 Affidavit, [19(d)].
[58] Applicant’s Second Submissions, [7(d)].
The following paragraph from the decision of Mortimer J in Sayed is particularly relevant to the proceedings currently before this Court:
[316] I consider the respondent should be ordered to pay the applicant a modest amount of general compensation for the unlawful way in which it terminated his employment. Taking into account the absence of any probative evidence other than the applicant’s display of despondency, disappointment and anger, but recognising that he relocated from Melbourne to Queensland and then to Perth, and was dismissed summarily and placed directly on a plane back to Melbourne from Sydney, having been compelled to pack up and leave Perth at short notice, any reasonable person in the applicant’s position would find this humiliating and distressing. I propose to award the applicant $3000 in compensation for humiliation and distress.[59]
(Emphasis added)
[59] Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27, [316].
I am satisfied that, as in Sayed, a modest amount of general compensation should be paid because the Applicant’s termination was unlawful and has caused him distress. It is noted however that the period of employment was very short and there is piecemeal evidence before the Court regarding the impact of the termination on the Applicant. I am therefore satisfied that an award of $500 is appropriate.
An Order will be made that the Respondents pay the Applicant the sum of $500 accordingly.
Conclusion – Compensation
I have determined that the Respondents should pay the Applicant: $327.87 for unpaid wages; $2,338.20 for future economic loss; and $500 as non-economic loss. These amounts total $3,166.07. The Applicant has requested that any amount ordered to be paid as compensation be ordered to be paid within 28 days of the Court orders. [60] An Order will be made that pursuant to s.545(2) of the FW Act the Respondents pay the Applicant compensation in the sum of $3,166.07 within 28 days of the date of the Order of the Court.
[60] Applicant’s Second Submissions, [8].
Pecuniary Penalties
The Court is empowered by s.546(1) of the FW Act to make an order for the payment of a pecuniary penalty, if it is satisfied that a person has contravened a civil penalty provision. Section 539(2) of the FW Act provides a table which indicates the maximum “penalty units” for contraventions of the sort occurring in this matter.
To determine the amount of a pecuniary penalty, s.546(2) of the FW Act states:
546(2) The pecuniary penalty must not be more than:
(a)if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or
(b)if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).
Therefore as the First Respondent is a body corporate, it is liable to pay a maximum of five (5) times the penalty units provided in the table in s.539(2) of the FW Act. Such penalty units contained in the table are otherwise considered the maximum penalties applicable to individuals, being the Second and Third Respondents.
I have determined that the Respondents contravened ss.44, 45 and 323(1) of the FW Act. In accordance with the table found in s.539(2):
(a)The maximum penalty for the First Respondent, being a body corporate, is 3,000 penalty units for a serious contravention, or otherwise 300 penalty units for a contravention of those sections; and
(b)The maximum penalty for the Second Respondent and the Third Respondent, being individuals, is 600 penalty units for a serious contravention, or otherwise 60 penalty units for a contravention of those sections.
I have also found that the Respondents contravened ss.340(1), 351(1) and 352 of the FW Act. In accordance with the table found in s.539(2):
(a)The maximum penalty for the First Respondent, being a body corporate, is 300 penalty units; and
(b)The maximum penalty for the Second and Third Respondents, being individuals, is 60 penalty units.
A penalty unit is defined in s.12 of the FW Act to have the same meaning as given in s.4AA of the Crimes Act 1914 (Cth). The relevant time for determining the sum of the penalty unit is the time the contravention arose, not the time of the Court’s orders or findings. On that basis, as the contraventions in this matter occurred between 20 November 2018 and 24 November 2018,[61] the relevant “penalty unit” for the course of the Applicant’s employment is $210.
[61] Application, Part G, [24], [3] – [15].
Therefore:
(a)60 penalty units (for an individual) amounts to $12,600;
(b)300 penalty units (for a body corporate) amounts to $63,000;
(c)600 penalty units (for and individual - serious contravention) amounts to $126,000; and
(d)3,000 penalty units (for a body corporate – serious contravention) amounts to $630,000.
The Court cannot impose a penalty that exceeds the maximum penalty amount. When determining the appropriate amount, the Court may take into account a number of factors that can reduce or mitigate this maximum amount. The Applicant’s Second Submissions at [19] referred to the factors to be considered regarding penalties in Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 (Kelly) at [14] as follows:
· The nature and extent of the conduct which led to the breaches;
· The circumstances in which that conduct took place;
· The nature and extent of any loss or damage sustained as a result;
· Whether there had been similar previous conduct by the respondent;
· Whether the breaches were distinct or arose out of the one course of conduct;
· The size of the business enterprise involved;
· Whether or not the breaches were deliberate;
· Whether senior management was involved in the breaches;
· Whether the party committing the breach had exhibited contrition;
· Whether the party committing the breach had taken corrective action;
· Whether the party committing the breach cooperated with enforcement authorities;
· The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements;
· The need for specific and general deterrence.
There are, however, no fixed factors and the Court should not adopt a checklist approach: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [19]; Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No.2) [2010] FCA 977 at [10]. Not all of these factors are relevant and each case must be determined on its own facts and circumstances. The Court must bear in mind the objects and purpose of the FW Act: s.3 FW Act.
It is also important to bear in mind that civil penalties are not intended to serve a retributive function: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [59]. It is against this background that the Court has approached its consideration of the appropriate penalty in this matter.
As referred to above, I have determined that the Respondents have committed six (6) contraventions of the FW Act. In Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 at [36], the next “step” for the Court to take is to:
[36] […]
2.Consider whether each separate contravention should be dealt with independently with some degree of aggregation for those contraventions arising out of a course of conduct, noting that section 557 of the Fair Work Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.
The course of conduct consideration was also a factor referred to in Kelly at [15]. The Applicant’s Second Submissions made reference to this by the following:
“However, the Respondents should not be penalised more than once for the same conduct.”[62]
[62] Applicant’s Second Submissions, [16].
Section 557 of the FW Act allows for the grouping of multiple contraventions into a single contravention where they arise from the same “course of conduct” such that there is an overlap of the factual and legal elements of the contraventions: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 at [39]. However, where the contraventions concern differing obligations under the FW Act, these contraventions cannot be grouped: Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62 at [17] – [18].
As discussed at earlier in these Reasons for Judgment, the Respondents’ course of conduct can be grouped into two distinct courses of conduct as follows:
(a)Dismissal from employment; and
(b)Non-payment of entitlements.
In considering any appropriate penalties, I have had regard to the comments of Mortimer J in Dafallah at [146] – [151]. In particular, I note her Honour’s comments at [151]:
[151] The purpose of identifying obligations in the FW Act as civil remedy provisions, and thus enabling penalties to be imposed for conduct contravening those obligations, is to establish norms of conduct across the activities covered by those provisions — minimum wages, equal remuneration, industrial action, right of entry, the general protections regime, and the requirements of enterprise agreements. Subjecting conduct contravening these provisions to the imposition of civil penalties is intended to serve the aims of deterrence (both specific and general) as part of a legislative aim to reduce or eliminate such conduct.
(Emphasis added)
The Applicant’s Second Submissions at [32] call for the following pecuniary penalties to be imposed upon the Respondents:
a.$126,000 for the First Respondent for contravening ss44, 45, 323 and 536 of the FWA (being 20% of the maximum penalty for a serious contravention for a body corporate);
b.$25,200 for each of the Second and Third Respondents for contravening ss44, 45, 323 and 536 of the FWA (being 20% of the maximum penalty for a serious contravention for an individual);
c.$44,100 for the First Respondent for contravening ss340, 351 and 352 of the FWA (being 70% of the maximum penalty for a serious contravention for a body corporate);
d.$8,820 for each of the Second and Third Respondents for contravening ss340, 351 and 352 of the FWA (being 70% of the maximum penalty for a serious contravention for a body corporate).
I disagree that such sums be imposed upon the Respondents for these contraventions. I find the Applicant’s sum of the penalties sought to be excessive for the following reasons:
(a)The nature of the contraventions of the FW Act in the context of this case are not serious contraventions because:
(i)The Applicant was an employee for only two (2) days prior to his dismissal and as discussed above in relation to the claim for non-economic loss, there is insufficient evidence to support the conclusion that the Applicant would have remained employed for a period of fifteen weeks; and
(ii)The Applicant’s unpaid wages amounted to only $327.89;
(b)There is no evidence before me that pertains to the First Respondent’s status as a company, save for that: for the purposes of the FW Act it is a body corporate; and that it is a small franchisee. Further I am unaware of the First Respondent’s net profits and total size. I accept that the lack of evidence is the fault of the Respondents non-participation in the proceeding. However, to impose penalties in excess of $100,000 on a small franchisee would be disproportionate and inappropriate in this case; and
(c)There is no evidence before the Court that the Respondents have a history of contraventions;
However:
(d)The Respondents have made no attempt to resolve any of the issues in the proceeding;
(e)The Respondents have taken no action to participate in the proceeding;
(f)The Respondents have shown no contrition for the two courses of conduct identified at [59] of these Reasons for Judgment; and
(g)The Respondent’s two courses of conduct identified at [59] of these Reasons for Judgment were deliberate.
Although I do not intend to impose pecuniary penalties as high as that which are sought in the Applicant’s Second Submissions, I do consider there to be an overwhelming need for both general and specific deterrence from this course of conduct occurring. In terms of general deterrence, the Court is conscious of the need to ensure that other businesses like that conducted by the First Respondent, and employers generally, are deterred from engaging in similar conduct. In terms of specific deterrence, the Court is conscious of the need to ensure that the Respondents are deterred from engaging in similar conduct again in the future.
The Respondents have six (6) contraventions, all of which were deliberate. The Second Respondent and the Third Respondent, were the sole directors, secretaries and shareholders of the First Respondent, and are thus considered ‘senior management’ for the purposes of the considerations set out in Kelly at [14]. The Respondents also showed little to no interest in participating in these proceedings. Significantly, when the Respondents did participate in this dispute when it was before the Fair Work Commission, a Response was lodged which contained allegations against the Applicant, which were not credible. The First Respondent made allegations that it dismissed the Applicant from its employment for reasons that included:[63]
(a)The Applicant did not provide a tax file number or banking details. This would not have prevented the Applicant from working or being paid;
(b)The Applicant insisted on being paid $13 an hour rather than the $22 an hour that the First Respondent alleged that it offered to pay the Applicant. This rate was below the applicable minimum rate under the Award in any event; and
(c)The Applicant insisted upon being paid in cash for any hours in excess of 20 hours a week. There was no reason why the Applicant would propose such an arrangement as there was no restriction on the Applicant’s working hours pursuant to the Visa during the agreed period of employment.
[63] Application, Part G, [24], [30].
While I do not intend on imposing a high pecuniary penalty, I will have regard to the case cited in the Applicant’s Second Submissions: Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716.[64] In this case, the Respondent was a small company and a first time contravener who was ordered to pay $7,500 for one (1) contravention in circumstances where the Applicant’s employment lasted only one (1) month.
[64] Applicant’s Second Submissions, [25].
Considering the above, I find the appropriate pecuniary penalty to be:
(a)For the first course of conduct (dismissal from employment):
(i)$7,500 for the First Respondent;
(ii)$2,500 for the Second Respondent; and
(iii)$2,500 for the Third Respondent.
(b)For the second course of conduct (non-payment of entitlements):
(i)$5,000 for the First Respondent
(ii)$2,500 for the Second Respondent; and
(iii)$2,500 for the Third Respondent.
I consider the above to be appropriate in the circumstances discussed above.
Orders will therefore be made pursuant to s.546(1) of the FW Act that the Respondents pay pecuniary penalties as follows:
(a) The First Respondent in the sum of $12,500;
(b) The Second Respondent in the sum of $5,000; and
(c) The Third Respondent in the sum of $5,000.The Applicant submits that any pecuniary penalties be paid to the Applicant’s Lawyers.[65] As the Applicant’s Lawyers are a community-based employment legal centre, I accept this submission. The Applicant’s Lawyers submit that any pecuniary penalties be paid by the Respondents within 60 days of the making of the Court orders.[66] I also accept this submission. Orders will be made accordingly.
[65] Applicant’s 23 October 2020 Affidavit, [20]; Applicant’s Second Submissions, [33].
[66] Applicant’s Second Submissions, [33].
Interest
The Applicant has sought an order pursuant to s.547(2) of the FW Act that the Respondents jointly pay interest to the Applicant on any order of compensation made by the Court, within 28 days of the order of the Court.[67]
[67] Applicant’s 20 October 2020 Affidavit, [20]; Applicant’s Second Submissions, [34].
Section 547 of the FW Act provides:
547 Interest up to Judgment
547(1)This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument.
547(2)In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
547(3)Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made.
In this case I consider that there is good reason to award pre-judgment interest and I therefore propose to make such an award.
I consider that pre-judgment interest should apply for the whole of the judgment debt for the period from which the cause of action arose. I determine that the cause of action arose on 24 November 2018, being the date that the Applicant was dismissed from his employment with the First Respondent and the Respondents refused to pay him any wages for work he had performed on 21 and 22 November 2018.
An order will therefore be made pursuant to s.574(2) of the FW Act that the Respondents pay pre-judgment interest on the sum of $3,166.07, calculated at the applicable interest rate prescribed by the Federal Court of Australia, for the period from 24 November 2018 until the date of the order.
Costs
The Applicant has sought an order that the Respondents jointly pay his costs, pursuant to s.570(2)(b) of the FW Act.
Section 570 of the FW Act deals with costs and provides as follows:
Section 570 Costs only if Proceeding Instituted Vexatiously etc.
570(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) [...]
570(2) The party may be ordered to pay the costs only if:
[.…]
(b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or […]
(Emphasis added)
It is well accepted that proceedings under the FW Act are generally no costs proceedings, with costs being the exception to the no costs rule: Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at [28] – [30].
The Court notes that, even where the statutory preconditions in s.570 of the FW Act have been satisfied, costs do not automatically follow. Awarding costs is a discretionary decision based upon the particular conduct and circumstances of the case, and bearing in mind the purpose of s.570 of the FW Act being to ensure that fear of a costs order does not discourage genuine litigants from pursuing cases with reasonable cause: Qantas Airways Ltd v Transport Workers Union of Australia (No 2) (2011) 211 IR 119 at [208].
The Applicant’s Lawyers made the following submissions in relation to costs:
35.The Applicant seeks an order, pursuant to s570(2)(b) of the FWA, that the Respondents jointly pay the Applicant’s costs on a party-party basis, in accordance with Schedule 1 of the Federal Circuit Court Rules 2001. The Respondents’ unreasonable act or omission in failing to defend this Application and failing to comply with any of the Court’s orders, including attending the court-ordered mediation, caused the Applicant to incur costs.
36The party-party costs to be ordered are in the amount of $9,674. These are to be paid to the Applicant’s solicitors, JobWatch Inc, and are to be paid within 60 days of the date of the Court’s orders.[68]
(Citation omitted)
[68] Applicant’s Second Submissions, [35] – [36].
I agree with these submissions made by the Applicant’s Lawyers. The Respondents have not participated in either the proceeding at-large or the court-ordered mediation. I refer to the history of this proceeding which has been set out under the heading ‘Procedural History’ in these Reasons for Judgment. By their unreasonable acts and omissions the Respondents have directly caused the Applicant to incur significant legal costs. I am therefore satisfied that the Respondent’s behaviour in this proceeding falls within s.570(2)(b) of the FW Act and I determine that it is appropriate that the Respondent’s pay the Applicant’s costs of the proceeding.
The Applicant’s Lawyers seek the sum of $9,674 in accordance with Schedule 1 of the 2001 Rules. The Applicant’s Lawyers did not in the Applicant’s Second Submissions provide the Court with a schedule of how the sum of $9,647 was calculated. Instead my Associates have been required to prepare a schedule of costs of the proceeding in accordance with Schedule 1 – Costs of the 2001 Rules (2001 Costs Schedule). I have reviewed the schedule prepared by my Associates and the 2001 Costs Schedule and have concluded that the sum of $9,674 claimed by the Applicant’s Lawyers is fair and reasonable.
Accordingly an Order will be made that the Respondents pay the Applicant’s party-party costs of the proceeding fixed in the sum of $9,674 and that this sum be paid to the Applicant’s Lawyers within 60 days of the date of the orders.
CONCLUSION
By reason of the foregoing I have determined that the Respondents are in default pursuant to the 2021 Rules and that default judgment should be entered against the Respondents pursuant to r.13.05(2)(d) of the 2021 Rules.
I have determined that the First Respondent contravened the following provisions of the FW Act: s.44; 45; 323(1); 340(1); 351(1); and 352. I have also determined that pursuant to s.550(1) of the FW Act, the Second Respondent and the Third Respondent were each involved in the aforesaid contraventions of the First Respondent.
Pursuant to s.545(2) of the FW Act the Respondents are to pay the Applicant compensation in the sum of $3,166.07 within 28 days. The Respondents are also to pay to the Applicant pre-judgment interest pursuant to s.547(2) of the FW Act from 24 November 2018, on the sum of $3,166.07 within 28 days.
Pursuant to s.546(1) of the FW Act the First Respondent is to pay the Applicant’s Lawyers penalties in the sum of $12,500 within 60 days. The Second Respondent and the Third Respondent are also to each pay penalties in the sum of $5,000 within 60 days.
The Respondents are to pay the Applicant’s party-party costs of the proceeding pursuant to s.570(2)(b) of the FW Act in the sum of $9,647. These costs are to be paid to the Applicant’s Lawyers within 60 days.
Orders are to be made in relation to the above findings accordingly.
I certify that the preceding one hundred and sixty-seven (167) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Judge C.E. Kirton KC . Associate:
Dated: 1 February 2023
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