FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sabapathy v Viveganantham (No 2) [2024] FedCFamC2G 1032
File number(s): MLG 1637 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 15 October 2024 Catchwords: INDUSTRIAL LAW – FAIR WORK – application by a refugee immigrant for relief in relation to various established contraventions of the minimum entitlements, regular payment and record-keeping obligations under the Fair Work Act 2009 (Cth) – compensation, interest and pecuniary penalties ordered. Legislation: Fair Work Act 2009 (Cth) ss. 12, 13, 14, 45, 323, 535, 545, 546, 547, 550
Fair Work Regulations 2009 (Cth) reg. 3.32, 3.33, 3.34
Cases cited: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450
Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Fair Work Ombudsman v Carers Portland Inc [2023] FedCFamC2G 620
Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68
Markarian v The Queen (2005) 228 CLR 357
Trade Practices Commission v CSR Ltd [1990] FCA 521
Wong v The Queen (2001) 207 CLR 584
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 30 September 2024 Place: Melbourne Counsel for the Applicant: Mr Merriman Solicitor for the Applicant: Holding Redlich The Respondent: Appearing in person ORDERS
MLG 1637 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRABAKARAN SABAPATHY
Applicant
AND: SAJEEVAN VIVEGANANTHAM
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
15 OCTOBER 2024
THE COURT ORDERS THAT:
1.Within 120 days of these orders, the Respondent pay to the Applicant:
(a)$83,263.81 to the Applicant in compensation for loss suffered because of the Respondent’s contraventions of the Fair Work Act 2009 (Cth) (Act);
(b)$31,638.10 to the Applicant by way of interest on the amount that was required to be paid to the Applicant pursuant to the Act; and
(c)$50,400.00 being the total pecuniary penalties payable for the Respondent’s contraventions of the Act.
2.There be no order as to costs.
3.To the extent not resolved by the Court’s reasons in Sabapathy v Viveganantham [2024] FedCFam2G 666 and Sabapathy v Viveganantham (No 2) [2024] FedCFam2G 1032, the amended application filed 22 May 2023 is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules…
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- Case
- [2024] FedCFamC2G 1032
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the assessment of penalties for the contraventions of the Fair Work Act. The court needed to consider factors such as the respondent’s cooperation, contrition, financial resources, and the necessity for general and specific deterrence. The court also had to decide the appropriate level of penalties for the identified contraventions, considering the maximum penalties available under the Act. The court further had to determine the total penalties and the timeframe for payment.
In its reasoning, the court found that the respondent's cooperation did not warrant a discount on penalties, as it had not facilitated the resolution of the matter. While the respondent expressed regret, it did not influence the penalty calculation. The court noted that SK Removals Pty Ltd was a small business, and the respondent, now operating as a sole trader, indicated a limited capacity to pay. The court emphasised the need for both general and specific deterrence, considering the respondent’s potential to employ others in the future. The court imposed penalties totalling $50,400, which it deemed proportionate to the contraventions. These penalties were to be paid to the applicant within 120 days.
In conclusion, the court ordered the respondent to pay compensation, interest, and the specified penalties to the applicant. There was no order regarding costs, and the application was dismissed otherwise. The penalties were set out to provide adequate deterrence while considering the respondent's financial capacity.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
These are all matters taken into account in assessing the penalty, including the conclusion that a separate award of compensation be made in the present case.Cooperation and contrition This was not a case where the Respondent’s (at best - sporadic) cooperation was of any assistance as to warrant a discount on or adjustment of the penalty. Rather, the Respondent’s involvement in the proceedings resulted in numerous delays to the resolution of the matter which were not ultimately justified by the provision of evidence or materials. At the penalty hearing, the Respondent told the Court that he is sorry. This may be understood as an expression of contrition and perhaps regret about the breakdown of his relationship with the Applicant and that it has come to this. For his part, the Applicant took this to be a statement of the Respondent’s regret upon belated appreciation or realisation of the serious consequences for him. These factors are relevant to an assessment of penalty. Size and financial resources It was not contentious that SK Removals Pty Ltd was a small company which was since deregistered. At the penalty hearing, the Respondent told the Court that he continues to operate a rubbish removal business, now as a sole trader, and does not employ nor intend to employ any other person to work for him. The Respondent also told the Court that he would be happy to pay $10,000 to $20,000 to the Applicant, but not for salary and did not want to pay any more. He said that he could make such payment within 2 months and did not otherwise describe his financial circumstances. Deterrence There is a need in the present case for general deterrence, to emphasise the importance of the maintenance of effective minimum terms and conditions of employment and adherence to the provisions of industrial instruments. There is also a need for specific deterrence especially where the Respondent continues to operate a business and could employ persons in the future.Resolution – penalties It falls to determine what level of pecuniary penalty (if any) is appropriate as against the Respondent for his involvement in the contraventions of SK Removals Pty Ltd. The multiple contraventions of each Award provision are properly characterised as a single course of conduct in each case. However, it remains that there are a total of 8 separate contraventions of s.45 on account of there being 8 separate award conditions which were not complied with, in addition to a contravention of s.323 and of s.535. As an individual, the maximum penalty for each of the contraventions of ss.45, 323 and 535 of the Act is $12,600. In weighing all of the relevant factors, I am satisfied that it is appropriate to impose pecuniary penalties on the Respondent as follows:(a)For each of the 8 contraventions of s.45, in the amount of $5,040 and totalling $40,320;(b)For the contravention of s.323, in the amount of $5,040; and(c)For the contravention of s.535, in the amount of $5,040,(totalling $50,400 in penalties).