Rybinski v Geocore Pty Ltd (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Rybinski v Geocore Pty Ltd (No 2) [2024] FedCFamC2G 644

File number: MLG 1411 of 2023
Judgment of: JUDGE FORBES
Date of judgment: 7 August 2024
Catchwords:

FAIR WORK –- application for imposition of civil penalties for contraventions of the Fair Work Act 2009 (Cth) – consideration of relevant factors – where conduct appears deliberate or recklessly indifferent – need for deterrence - totality – penalties ordered

FAIR WORK - application for costs – applicant seeks indemnity costs – where applicant forced to commence proceedings to enforce contraventions – where respondents have not engaged in any proceedings – consideration of conduct of the respondents – whether indemnity costs appropriate – where non-participation of respondents meant that applicant met with no resistance – respondent to pay costs on scale

Legislation: Fair Work Act 2009 (Cth) s 44, 527, 536, 550, 570, 577
Cases cited:

ABCC v CFMEU [2019] FCAFC 36

Augusta Ventures Ltd v Mt Arthur Coal Pty Ltd [2020] FCAFC 194

Australian Building and Construction Commissioner v Pattinson [2022] HCA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157

Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Commonwealth of Australia v Construction, Forestry, Mining and Energy Union (2003) 129 FCR

Crawford v Geocore Pty Ltd [2024] FedCFamC2G 176

Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301

Fair Work Ombudsman v Raimondi Investments Pty Ltd [2016] FCCA 1398

Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832

Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258

Fair Work Ombudsman v WCH Services Pty Ltd & Anor [2018] FCCA 1876

Kambouridis v L.R. Reed City Pty Ltd [2020] FCCA 1484

Kelly v Fitzpatrick [2007] FCA 1080

Meadley v Sort Worx Pty Ltd [2013] FCA 1012

Murdock v Virgin Australia Airlines Pty Ltd (No 3) [2024] FCA 227 Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115

Payne v Secure Melbourne Protective Services Pty Ltd (No 2) [2023] FCA 1579

Ryan v Primesafe [2015] FCA 8

Rybinski v Geocore Pty Ltd [2024] FedCFamC2G 177

Saxena v PPF Asset Management Ltd [2011] FCA 395

Schell v Ensign Australia Pty Ltd [2015] FWC 8825

Trade Practices Commission v CSR Ltd [1990] FCA 521

Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190

Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32

Division: Division 2 General Federal Law
Number of paragraphs: 64
Date of hearing: On the papers
Place: Melbourne
Solicitor for the Applicant: Mr Sherr & Mr Jackson, Sparke Helmore Lawyers
Respondents: No appearance

ORDERS

MLG1411 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

KELLIE RYBINSKI

Applicant

AND:

GEOCORE PTY LTD

First Respondent

AMANDA…

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Details
Case
[2024] FedCFamC2G 644
Decision Date

CaseChat Overview and Summary

In Rybinski v Geocore Pty Ltd (No 2), the Fair Work Commission was tasked with determining the appropriate civil penalties for the respondents' contraventions of the Fair Work Act 2009 (Cth) and whether indemnity costs should be awarded to the applicant. The respondents, Geocore Pty Ltd and Ms Brown, were found to have deliberately ignored an order of the Fair Work Commission and failed to comply with the statutory obligations regarding the applicant’s employment. The applicant, Ms Rybinski, sought penalties and indemnity costs for the respondents' failure to comply with the order and their lack of engagement in the proceedings.

The primary legal issues involved assessing the appropriate level of penalties and whether the applicant should be awarded indemnity costs. The court had to balance the need for deterrence against the potential oppressiveness of the penalties and consider the conduct of the respondents in determining the appropriate level of indemnity costs. The court was required to evaluate the totality of the respondents' contravening conduct, their engagement in the proceedings, and their compliance with the minimum standards set by the Fair Work Act.

In determining the penalties, the court found that while the respondents' conduct was serious, the penalties sought by the applicant were excessive. The court inferred that the business was relatively small and that there was no prior history of offending by the respondents. The court considered that the respondents were first-time offenders and should be afforded some leniency. However, the court also noted that the respondents had not engaged in the proceedings, offered any explanation for their conduct, or demonstrated any remorse. The court concluded that the penalties should reflect the need for general deterrence while avoiding oppressive severity. The court ordered penalties of $106,000 for the first respondent and $26,400 for the second respondent. Regarding costs, the court held that the respondents’ lack of engagement in the proceedings and their failure to offer any explanation justified awarding indemnity costs to the applicant. The court ordered the respondents to pay the applicant's costs on a scale.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant submits that each of the respondents’ contraventions offend against the minimum standards provided by the FW Act. In this matter, the respondents acted contrary to the purpose of the FW Act, which is to provide a guaranteed set of fair, relevant and enforceable terms and conditions of employment and protect the applicant’s ability to enforce these standards. Ms Rybinski contends that the respondents’ failure to comply with the FWC order goes against the basic concept of the rule of law[11], and that the respondents should be penalised appropriately.[11] Fair Work Ombudsman v Raimondi Investments Pty Ltd [2016] FCCA 1398 at [29]Conclusion on penalty The applicant seeks penalties in the range of $132,000 to $152,625 for the first respondent and $26,400 to $30,525 for the second respondent for contravening ss 44, 527 and 536. This amounts to an overall penalty of 53-62% of the maximum available penalties. In my view the penalties sought by the applicant are excessive and do not strike a proper balance between deterrence and oppressive severity. In determining the penalties to be ordered against the respondents, this Court must have regard to the totality of the contravening conduct to ensure that any penalty ordered is not crushing or oppressive[12].[12] Pattinson at [110] The applicant submits, and I accept, that there is no evidence before the Court about the respondents’ financial capacity and therefore no way of assessing what might be crushing or oppressive to them. However, I infer from the evidence that the business was relatively small and that it was not trading as it had prior to the death of the second respondents husband. There is no evidence before the Court that the respondents or either of them have a prior history of offending. I therefore assess penalty on the premise that the respondents are first time offenders and should be afforded some leniency in that regard. The respondents have done themselves no favours by not engaging in the proceedings or offering any explanation for their conduct. By placing their head in the sand and choosing not to engage with the allegations against them, the respondents invite the Court to infer that they have no defence and that their conduct has been wilful. The overall impression from the facts presented by the applicant, is that the respondents adopted a course of action which was wilfully blind to the legal obligations they were bound to observe. The order of the Fair Work Commission was simply ignored and the respondents took matters into their own hands, believing that the employee was guilty of some act of misconduct. This was not a case in which the employer was unable to meet its obligations; it simply chose not to do so. This was a serious contravention and the need for general deterrence weighs as a heavy consideration in fixing penalty. It seems to me that there is no proper basis for grouping the contraventions as arising from a single course of conduct[13]. Each of the contraventions required a separate and distinct decision on the part of the respondents not to comply with a statutory obligation. The non-compliance with the Fair Work Commission order, the failure to pay the applicant her accrued annual leave entitlement and the provision of a false payslip stand as separate contraventions of the FW Act. It might be said there is a commonality in the offending in that the contraventions all involved the employment of the applicant and they occurred as a sequence of events after the stand down decision. However, identifying a single motive for commission of separate offences will rarely be sufficient to establish the same criminality in separate and distinct offending acts. [13] Fair Work Act 2009 (Cth) s 577

Ratio Decidendi

Legal Principle Established

There is no direct evidence before the Court regarding the size of the business, but I infer that Geocore is relatively small in size.Corrective action and cooperation As mentioned above, Geocore and Ms Brown have failed to engage in proceedings and have not taken any steps to correct the contraventions. They have not displayed any remorse or contrition for their actions.Compliance with minimum standards The applicant submits that each of the respondents’ contraventions offend against the minimum standards provided by the FW Act. In this matter, the respondents acted contrary to the purpose of the FW Act, which is to provide a guaranteed set of fair, relevant and enforceable terms and conditions of employment and protect the applicant’s ability to enforce these standards. Ms Rybinski contends that the respondents’ failure to comply with the FWC order goes against the basic concept of the rule of law[11], and that the respondents should be penalised appropriately.[11] Fair Work Ombudsman v Raimondi Investments Pty Ltd [2016] FCCA 1398 at [29]Conclusion on penalty The applicant seeks penalties in the range of $132,000 to $152,625 for the first respondent and $26,400 to $30,525 for the second respondent for contravening ss 44, 527 and 536. This amounts to an overall penalty of 53-62% of the maximum available penalties. In my view the penalties sought by the applicant are excessive and do not strike a proper balance between deterrence and oppressive severity. In determining the penalties to be ordered against the respondents, this Court must have regard to the totality of the contravening conduct to ensure that any penalty ordered is not crushing or oppressive[12].[12] Pattinson at [110] The applicant submits, and I accept, that there is no evidence before the Court about the respondents’ financial capacity and therefore no way of assessing what might be crushing or oppressive to them. However, I infer from the evidence that the business was relatively small and that it was not trading as it had prior to the death of the second respondents husband. There is no evidence before the Court that the respondents or either of them have a prior history of offending. I therefore assess penalty on the premise that the respondents are first time offenders and should be afforded some leniency in that regard. The respondents have done themselves no favours by not engaging in the proceedings or offering any explanation for their conduct. By placing their head in the sand and choosing not to engage with the allegations against them, the respondents invite the Court to infer that they have no defence and that their conduct has been wilful. The overall impression from the facts presented by the applicant, is that the respondents adopted a course of action which was wilfully blind to the legal obligations they were bound to observe. The order of the Fair Work Commission was simply ignored and the respondents took matters into their own hands, believing that the employee was guilty of some act of misconduct. This was not a case in which the employer was unable to meet its obligations; it simply chose not to do so. This was a serious contravention and the need for general deterrence weighs as a heavy consideration in fixing penalty.