Shergill v Singh (No 2)

Case [2024] FCA 261

FEDERAL COURT OF AUSTRALIA

Shergill v Singh (No 2) [2024] FCA 261

File number(s): NSD 991 of 2021
Judgment of: RAPER J
Date of judgment: 20 March 2024
Catchwords: INDUSTRIAL LAW – determination of civil penalties – for contraventions of ss 323, 536, 44(1) and 45 of the Fair Work Act 2009 (Cth) by Mr Singh, the former Indian High Commissioner – primary purpose of deterrence in civil penalties determination – where the contravener did not participate in any of the Court’s processes – whether the conduct was deliberate – maximum penalty awarded
Legislation:

Fair Work Act 2009 (Cth) ss 44(1), 45, 323, 536, 539(2), 546, 546(1), 546(2)(a), 556, 557, 557(1)

Fair Work Regulations 2009 (Cth) r 3.46
Cases cited:

Australian Building and Construction Commissioner v Automatic, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25

Basfar v Wong [2022] UKSC 20; [2023] AC 33

Doe v Howard [2015] VSC 75

Fair Work Building Inspectorate v Foxville Projects Group Pty Ltd [2015] FCA 492

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301; 275 IR 148

Fair Work Ombudsman v Orwill Pty Ltd & Ors [2011] FMCA 730

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

Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68

Mahmood v Chohan [2021] FCA 973

Reyes v Al-Malki [2017] UKSC 61; [2018] 1 All ER 629

Shergill v Singh [2023] FCA 1346

Trade Practices Commission v CSR Ltd [1990] FCA 521; [1991] ATPR ¶41-076

Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49
Organisation for Security and Co-operation in Europe, How to Prevent Human Trafficking for Domestic Servitude in Diplomatic Households and Protect Private Domestic Workers (3 November 2014)
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 44
Date of hearing: 13 March 2024
Counsel for the Applicant Ms P Bindon
Solicitor for the Applicant Clayton Utz
Counsel for the Respondent The Respondent did not appear

ORDERS

NSD 991 of 2021
BETWEEN:

SEEMA SHERGILL

Applicant
AND:

NAVDEEP SURI SINGH

Respondent

ORDER MADE BY:

RAPER J

DATE OF ORDER:

20 MARCH 2024

THE COURT ORDERS THAT:

1.The respondent, Mr Navdeep Suri Singh, pay a pecuniary penalty to the applicant, Ms Shergill, of $97,200 within 60 days.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

RAPER J:

  1. This decision concerns what appropriate penalty should be fixed as a consequence of the orders made and my reasons for judgment in Shergill v Singh [2023] FCA 1346 (liability judgment or LJ). Ms Shergill was…

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Shergill v Singh (No 2) [2024] FCA 261
Case
[2024] FCA 261
Decision Date

CaseChat Overview and Summary

In Shergill v Singh (No 2), the Federal Court was tasked with determining the appropriate pecuniary penalty to be imposed on Mr Navdeep Suri Singh, the former Indian High Commissioner to Australia, for serious contraventions of the Fair Work Act 2009 (Cth). The legal issues before the court included the determination of the appropriate penalty under section 546 of the Fair Work Act and the consideration of relevant non-exhaustive factors, such as the nature and extent of the contraventions, the degree of deliberateness, and the circumstances in which the conduct took place. Mr Singh did not participate in any of the court's processes, and the court found that his conduct was deliberate, stemming from his deliberate avoidance of his obligations under Australian law to pay Ms Shergill her entitlements.

The court held that the primary purpose of the civil penalty was deterrence. It considered the maximum penalties specified in the Fair Work Act, which were 600 penalty units for serious contraventions. The court found that the appropriate penalty, considering the totality of Mr Singh's conduct, was $97,200. This penalty was deemed necessary to deter Mr Singh and others from engaging in similar conduct in the future. The court applied the totality principle to ensure that the penalty was proportionate to the conduct viewed as a whole. The court also noted that the penalty was appropriate given the egregious nature of Mr Singh's conduct and the significant breaches of Australian law involved.

In conclusion, the court ordered Mr Navdeep Suri Singh to pay a pecuniary penalty of $97,200 to Ms Shergill within 60 days. This decision reflects the court's commitment to ensuring that appropriate penalties are imposed to deter unlawful conduct and to protect vulnerable workers.

Orders

Orders of the court

1. The respondent, Mr Navdeep Suri Singh, pay a pecuniary penalty to the applicant, Ms Shergill, of $97,200 within 60 days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Under s 546(2)(a), a pecuniary penalty imposed on an individual must not be more than “the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)”. For each of the provisions contravened by Mr Suri, column 4 of the table in s 539(2) specifies a maximum penalty of 600 penalty units for a serious contravention or, otherwise, 60 penalty units. Filed evidence and the non-attendance of Mr Suri On the question of penalty Ms Shergill relied upon an affidavit of David Hilliard affirmed on 25 January 2024 (Hilliard affidavit) which contained a number of annexures. Certain parts of the evidence were not pressed or were ruled inadmissible by the Court. In addition, Ms Shergill relied upon the affidavit of Ms Rachael Grivas, solicitor, who provided evidence of compliance with the Court’s orders on 24 November 2023, namely that Mr Suri had been served the Court’s timetabling orders for hearing (including notifying him of the hearing date and when he needed to file any evidence or submissions) and also with copies of Ms Shergill’s evidence and submissions. I accept this evidence. Mr Suri has made no contact with the Court or Registry at all in these proceedings. Mr Suri did not attend either the liability nor the penalty hearing. At the hearing I granted Ms Shergill leave for the hearing to proceed in Mr Suri’s absence because I am satisfied he is aware of the proceedings and has chosen not to participate. Relevant principles The primary, if not sole purpose of a civil penalty is deterrence: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 at [9] and [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). The Court must fix “appropriate” penalties. Penalties will be appropriate where they are no more than might be considered reasonably necessary to deter further contraventions of a “like kind” by the contravener and others: Pattinson at [9]-[10]. Relevant non-exhaustive factors to be taken into account include, those identified in Trade Practices Commission v CSR Ltd [1990] FCA 521; [1991] ATPR ¶41-076 at 52,152 (French J), cited in Pattinson at [18]:1.The nature and extent of the contravening conduct.2.The amount of loss or damage caused.3.The circumstances in which the conduct took place.4.The size of the contravening company.5.The degree of power it has, as evidenced by its market share and ease of entry into the market.6.The deliberateness of the contravention and the period over which it extended.7.Whether the contravention arose out of the conduct of senior management or at a lower level.8.Whether the company has a corporate culture conducive to compliance, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.9.Whether the company has shown a disposition to co-operate with the authorities responsible for enforcement of the Act in relation to contravention.

Decision

Reasons for decision

This decision concerns what appropriate penalty should be fixed as a consequence of the orders made and my reasons for judgment in Shergill v Singh [2023] FCA 1346 (liability judgment or LJ). Ms Shergill was a member of a proportion of Australian workers who are invisible from Australian society: Their work and entire existence is entrapped within domestic servitude. These workers, by fear, the precarious nature of their employment arising from their visa status, their lack of language skills, complete isolation and their slave-like working conditions, are precluded from participating in our society and huddling under the cloak of our societal protections. Their invisibility breeds exploitation and unlawful practices. As observed in the liability judgment, Ms Shergill’s working conditions bore no semblance with what might be expected by Australian society. Ms Shergill was a domestic worker in the house of Mr Suri, who was then the Indian High Commissioner to Australia. Her employment conditions, which included her passport being taken from her, working seven days a week, never being permitted to take leave and only being allowed outside the house for brief periods in the day when looking after Mr Suri’s dog, involved significant breaches of Australian law: at LJ[2]. Mr Suri, the former High Commissioner of India in Australia, set about deliberately to avoid his obligations under Australian law to pay Ms Shergill her entitlements. It is without question that Ms Shergill was employed by him personally and not the Indian High Commission. It is without question that Mr Suri was, as was Ms Shergill, subject to the rights, obligations and protections under Australian law. In the liability judgment, I made declarations that, between 24 September 2015 and 26 May 2016, the respondent (Mr Suri) contravened ss 323, 536, 44(1) and 45 of the Fair Work Act 2009 (Cth), each of which is a civil penalty provision. I also ordered that Mr Suri pay $136,276.62 plus interest within 60 days of the orders. That order has not been complied with. The declaration made was in the following terms:1. The respondent contravened the following civil remedy provisions in the period between 24 September 2015 and 26 May 2016 (the employment claim period):(a) section 323 of the Fair Work Act 2009 (Cth) by failing to pay the applicant amounts payable to her in relation to the performance of work in full, at least monthly and by one of the methods specified in s 323(2) of the FW Act;(b) section 536 of the FW Act by failing to provide the applicant with a pay slip within one working day of paying her an amount in relation to her performance of work;(c) section 44(1) of the FW Act by contravening a provision of the National Employment Standards, being s 90(2) of the FW Act, by failing to pay the applicant when employment ended the amount that would have been payable to her had she taken that period of annual leave;(d) section 45 of the FW Act by:(i) failing to pay the applicant minimum wages under cl 14.1 and Sch B of the Miscellaneous Award 2010 during the employment claim period;(ii) failing to provide an arrangement for ordinary hours of work under cll 10.2 and 20 of the Award;(iii) failing to provide an unpaid break of at least 30 minutes where the applicant was required under cl 21 of the Award;(iv) failing to pay overtime rates prescribed under cl 22.1 of the Award; (v) failing to pay penalty rates for work performed on public holidays as prescribed under cl 22.2 of the Award; and (vi) failing to pay an annual leave loading of 17.5% on top of the paid annual leave required under the National Employment Standards, as prescribed under cl 23.3 of the Award.

Ratio Decidendi

Legal Principle Established

Consideration must be given to whether the contravention involves a relevant state of mind including, a deliberate flouting of the law, recklessness, wilful blindness, “courting the risk”, negligence or innocence: Reckitt Benckiser at [131]. Furthermore, where there is any degree of awareness (noting the spectrum) of the actual or potential unlawfulness, the contravention is necessarily more serious. It is worthwhile extracting the Full Court’s holding in full:131.If a contravention does not involve any state of mind then it is for the party asserting any particular state of mind (be it a deliberate flouting of the law, recklessness, wilful blindness, “courting the risk”, negligence, or innocence or any other characterisation of state of mind) to prove its assertion. If, in the event, neither party discharges its onus to establish any particular state of mind in relation to the contraventions, the Court determines penalty on no more than the fact of the proscribed nature of the conduct (see, by analogy see R v Olbrich (1999) 199 CLR 270; 166 ALR 330; [1999] HCA 54 (Olbrich) at [22]–[28]). However, if any degree of awareness of the actual or potential unlawfulness of the conduct is proved then, all other things being equal, the contravention is necessarily more serious. Such awareness may be able to be inferred from the very nature of the conduct or representations constituting the conduct. However absence of such proof does not establish a mitigatory state of mind (see, by analogy, R v Storey [1998] 1 VR 359 at 369, quoted with approval by the majority in Olbrich at [27]; see also [25]). It means only that the neutral state of mind required for liability has not been disturbed for the purposes of penalty. If a contravening party wishes to go beyond the neutral statutory state of mind for liability and positively assert a lack of consciousness of the character of the conduct for the purposes of penalty, that is a circumstance of mitigation which the contravening party must prove.Consideration Consistent with the structure of Ms Shergill’s submissions, it is useful to undertake the instructive steps identified by Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301; 275 IR 148 at [36]:(a)identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention;(b)consider whether each separate contravention should be dealt with independently or as arising out of a course of conduct, noting that section 557 of the FW Act provides that two or more contraventions of specific civil remedy provisions 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; (c)consider whether there should be further adjustment to ensure that there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did; (d)consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation; and (e)consider the overall penalties arrived at and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary.