Singh v Fair Work Ombudsman

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FEDERAL COURT OF AUSTRALIA

Singh v Fair Work Ombudsman [2021] FCA 71  

Appeal from: Fair Work Ombudsman v Sinpek Pty Ltd (in liq) (No 4) [2020] FCCA 97
File number: NSD 155 of 2020
Judgment of: BROMWICH J
Date of judgment: 5 February 2021
Catchwords: INDUSTRIAL LAW – notice of appeal from the Federal Circuit Court of Australia – primary judge did not err in determining the objective seriousness of the contraventions – primary judge did not fail to take into account, and did not miscategorise, the subjective features of the appellants – primary judge did not err in application of the principles of totality in respect of the penalties imposed – primary judge did not err in application of principles of common law course of conduct – appeal dismissed 
Legislation:

Fair Work Act 2009 (Cth) ss 44, 45, 90(2), 99, 117(1), 325, 535(1), 536(1), 550

Fair WorkRegulations 2009 (Cth) regs 3.36(1), 3.40

Vehicle Manufacturing, Repair, Services and Retail Award 2010 cls 33.4, 42.2, 43.3(a), 43.4(a)  

Cases cited:

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301

Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68

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

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; 265 FCR 208

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; 264 FCR 155

Fair Work Ombudsman v Sinpek Pty Ltd (In Liq) (No 4) [2020] FCCA 97

Fair Work Ombudsman v Sinpek Pty Ltd (In Liq) (No 3) [2020] FCCA 88

House v The King (1936) 55 CLR 499

Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 270 FCR 39

Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 384 ALR 75; 299 IR 404

Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; 221 FCR 153

Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 30
Date of hearing: 14 October 2020
Date of last submissions: 4 November 2020
Counsel for the Appellants: I Latham
Solicitor for the Appellants: Taylor & Scott Lawyers
Counsel for the Respondent: Y Shariff SC
Solicitor for the Respondent: Office of the Fair Work Ombudsman

ORDERS

NSD 155 of 2020
BETWEEN:

MR KAMALDEEP SINGH

First Appellant

MS UMA SINGH

Second Appellant

AND:

FAIR WORK OMBUDSMAN

Respondent

ORDER MADE BY:

BROMWICH J

DATE OF ORDER:

5 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.There be no order as to costs.

Note:   Entry of orders is…

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Details
Case
[2021] FCA 71
Decision Date

CaseChat Overview and Summary

The appeal was brought by Mr and Ms Singh against a decision of the Federal Circuit Court of Australia concerning penalties imposed on them for contraventions of the Fair Work Act 2009 (Cth). The contraventions related to the failure to pay various entitlements to employees of their company, Sinpek Pty Ltd, which operated a petrol station and convenience store in New South Wales. The contraventions included failing to pay minimum hourly rates, shiftwork loading rates, full-time weekend rates, public holiday rates, overtime rates, annual leave, personal leave, and minimum notice of termination. Mr Singh was also found to have contravened the Act by requiring an employee to pay for stolen fuel and income tax. Additionally, Mr and Ms Singh were found to have failed to provide pay slips and keep leave and termination records.

The appellants challenged the penalties imposed by the primary judge on several grounds. They argued that the primary judge had erred in determining the objective seriousness of the contraventions, failed to take into account or miscategorising the subjective features of the appellants, erred in the application of the principles of totality in respect of the penalties imposed, and erred in the application of the principles of the common law course of conduct. The appellants also claimed that the penalties imposed were manifestly excessive and that the primary judge had failed to properly consider the appellants' capacity to pay.

The court found that the primary judge had not erred in determining the objective seriousness of the contraventions. The court found that the primary judge had properly considered the subjective features of the appellants and had not failed to take them into account or miscategorise them. The court also found that the primary judge had properly applied the principles of totality and the principles of the common law course of conduct in determining the penalties. The court found that the penalties imposed were not manifestly excessive and that the primary judge had properly considered the appellants' capacity to pay.

In conclusion, the court found that the appeal should be dismissed and that there should be no order as to costs. The court found that the primary judge had not erred in determining the penalties and that the penalties imposed were appropriate in the circumstances. The court found that the appellants had not demonstrated any error on the part of the primary judge in relation to the exercise of the penalty imposition discretion. The appeal was dismissed, and the penalties imposed by the primary judge were upheld.

Orders

Orders of the court

1. The appeal be dismissed.

2. There be no order as to costs.

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

Full text does not contain this section.

Decision

Reasons for decision

After a hearing over four days separate days in August, September, November and December 2019, and after hearing further submissions on 20 January 2020, the primary judge delivered a written judgment on liability and compensation: Fair Work Ombudsman v Sinpek Pty Ltd (In Liq) (No 3) [2020] FCCA 88 (liability judgment). The liability judgment made declarations of contravention against Mr and Ms Singh and ordered them to pay compensation to the former employees with interest. His Honour then heard submissions on penalty, and later that day delivered an ex tempore judgment, subsequently published as Fair Work Ombudsman v Sinpek Pty Ltd (In Liq) (No 4) [2020] FCCA 97 (penalty judgment). There is no appeal against the liability judgment. The compensation ordered has been paid. This appeal is confined to the quantum of the penalties imposed upon Mr and Ms Singh. In such an appeal by way of rehearing, the appellants must demonstrate error on the part of the primary judge in relation to the exercise of the penalty imposition discretion: House v The King (1936) 55 CLR 499, 505; see also Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [45]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 (Full Court) at [21]-[25]. Demonstrating error in the exercise of that discretion is no easy task. It is not enough that this Court might have reached a different conclusion on the same facts and evidence. Contraventions established and penalties imposed Sinpek operated a petrol station and convenience store, including a cafe, at Doyalson on the Central Coast of New South Wales, trading continuously “24/7”. The business was sold on 26 July 2018 and the premises were apparently vacated the same day. Sinpek was found to have contravened the FW Act in relation to two of its employees, Mr Sandeep Singh Dhariwal and Ms Raman Kumari, during the period from 8 January 2015 to 10 August 2016. Mr and Ms Singh were found to be involved in Sinpek’s contraventions and thereby liable for them under s 550 of the FW Act. The substance of the declarations were that:(1)both Mr and Ms Singh were involved in contraventions of the following provisions:(a)s 45 of the FW Act by failing to pay to Ms Kumari the minimum full-time hourly rates as required by cl 33.4 of the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Modern Award);(b)s 45 of the FW Act by failing to pay to Ms Kumari the Shiftwork Loading Rates as required by cl 42.2 of the Modern Award;(c)s 45 of the FW Act by failing to pay to Ms Kumari the Full-time Saturday Rates as required by cl 43.3(a)(i) of the Modern Award;(d)s 45 of the FW Act by failing to pay each of Mr Dhariwal and Ms Kumari the Full-time Sunday Rates as required by cl 43.3(a)(ii) of the Modern Award;(e)s 45 of the FW Act by failing to pay each of Mr Dhariwal and Ms Kumari Public Holiday Rates as required by cl 43.3(a)(iii) of the Modern Award;(f)s 45 of the FW Act by failing to pay each of Mr Dhariwal and Ms Kumari overtime rates for overtime hours worked between Monday to Saturday as required by cl 43.4(a)(i) of the Modern Award;(g)s 45 of the FW Act by failing to pay each of Mr Dhariwal and Ms Kumari overtime rates for overtime hours worked on Sundays as required by cl 43.4(a)(ii) of the Modern Award;(h)s 45 of the FW Act by failing to pay each of Mr Dhariwal and Ms Kumari overtime rates for overtime hours worked on public holidays as required by cl 43.4(a)(iii) of the Modern Award;(i)s 44 of the FW Act by failing to pay each of Mr Dhariwal and Ms Kumari annual leave on termination of employment as required by s 90(2) of the FW Act;(j)s 44 of the FW Act by failing to pay Mr Dhariwal his personal leave during his employment as required by s 99 of the FW Act;(k)s 44 of the FW Act by failing to pay each of Mr Dhariwal and Ms Kumari any amount in lieu of the Minimum Period of Notice as required by s 117(1) of the FW Act; and(l)s 536(1) of the FW Act by failing to provide each of Mr Dhariwal and Ms Kumari with pay slips between 1 January 2016 and 29 August 2016.(2)Mr Singh alone was involved in the following further contraventions:(a)s 325 of the FW Act by requiring Mr Dhariwal to pay the Fuel Payment for the theft of fuel by customers to Mr Singh;(b)s 325 of the FW Act by requiring Mr Dhariwal to pay the Income Tax Amount and/or the Tax Payment to Mr Singh in respect of income tax; and(c)s 535(1) of the FW Act by failing to keep leave and termination records in relation to Mr Dhariwal and Ms Kumari as prescribed by regs 3.36(1) and 3.40 of the Fair WorkRegulations 2009 (Cth).All of the above contraventions were contested, except for a late concession as to annual leave, being the Sinpek contravention listed at [5(1)(i)] above.

Ratio Decidendi

Legal Principle Established

In the way in which this ground was advanced orally and in writing, it did not rise higher than taking issue with the conclusions reached. Far from being satisfied that error has been established, I am in substantial agreement with the reasoning and conclusions reached. Accordingly this ground must fail.Ground 2 – irrelevant and relevant considerations The grounds of irrelevant and relevant considerations are best understood as allegations of having regard to something that is forbidden, and failing to have regard to something that is mandatory. In the context of criminal sentencing and civil penalty imposition they are inherently very difficult grounds to succeed upon because of the breadth of the discretion being exercised and the role of the judicial officer in attributing significance, or lack of significance, to any particular fact or circumstance. Moreover, taking issue with the weight or emphasis given to a particular feature of the case falls well short of establishing this kind of error. The ground is complicated in this proceeding by the submissions advanced in support of it referring to a denial of procedural fairness, which is a very different kind of error if established. The central complaints made in support of this ground are that the primary judge appeared to have placed significance upon the making of substantial unsecured loans by Sinpek shortly before it was put into liquidation, with the intention of preventing enforcement of compensation orders, and that this series of findings is contrary to the evidence. It is submitted that the appellants were not put on notice that this approach was going to be taken. This was the source of the allegation of a denial of procedural fairness. The other aspect of the way in which this ground was sought to be advanced concerns an alleged failure to have regard to the absence of prior contraventions, the relatively small size of Sinpek with some 10-15 employees, and the mitigating admission of the failure to pay annual leave upon termination of employment. This ground fails both as to its pleaded aspect of relevant/irrelevant considerations, and as to its unpleaded aspect of denial of procedural fairness. The objective facts readily available to be found on the available evidence as to the asserted irrelevant considerations are that at the time allegations had been made that Sinpek was indebted to its employees, the appellants caused unsecured loans to be made to their accountant with no benefit to the company being apparent, and there being a proper basis for a serious concern as to solvency. Sinpek was placed into voluntary liquidation after the loan was made and during the pendency of the proceeding before the Federal Circuit Court. One of the reasons for that taking place was the fact of defending those proceedings. In those circumstances, it was both open and obvious that his Honour might infer that the appellants were taking steps intended to be adverse to the interests of the former employees, irrespective of whether this endeavour was likely to succeed.