Sponza v Coal Face Resources Pty Ltd

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SPONZA v COAL FACE RESOURCES PTY LTD & ANOR [2015] FCCA 1140
Catchwords:
INDUSTRIAL LAW – Contraventions of Fair Work Act – assessment of compensation – whether accessory should be ordered to pay compensation – fixing of pecuniary penalties.

Legislation:

Crimes Act 1914, s.4AA
Fair Work Act 2009, ss.12, 44, 87(1), 90(2), 96, 97, 99, 323(1), 340(1), 539(2), 550(1), 550(2), 545, 545(1), 546(1), 557(1), 557(2), 793

Federal Circuit Court of Australia Act 1999, s.18
Federal Circuit Court Rules 2001, rr.13.03A(2), 13.03B(2)(c)
Workers Compensation Act 1995 (Qld), s.151

Fair Work Ombudsman v Fed Up Deli & Catering Pty Ltd [2012] FMCA 738
McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181
Scotto v Scala Bros Pty Ltd [2014] FCCA 2374
Applicant: SAMANTHA SPONZA
First Respondent: COAL FACE RESOURCES PTY LTD
Second Respondent: JASON MOULTRIE
File Number: BRG 1133 of 2014
Judgment of: Judge Jarrett
Hearing date: 27 April 2015
Date of Last Submission: 27 April 2015
Delivered at: Brisbane
Delivered on: 7 May 2015

REPRESENTATION

Solicitor for the Applicant: Mr Zielinski
Solicitors for the Applicant: Minter Ellison
No appearance for the first respondent
No appearance for the second respondent

ORDERS

THE COURT DECLARES THAT:

  1. the first respondent has breached the contract of employment with the applicant made on 22 March, 2013 in that it:

    (a)failed to pay to her wages due under the contract for the following periods:

    (i)9 June 2014 – 22 June 2014;

    (ii)7 July 2014 – 20 July 2014;

    (iii)21 July 2014 – 3 August 2014;

    (iv)1 September 2014 – 14 September 2014;

    (v)15 September 2014 – 28 September 2014;

    (vi)29 September 2014  – 12 October 2014; and

    (vii)13 October 2014 – 26 October 2014;

    (b)failed to pay to her superannuation contributions due under the contract for the periods set out in declaration (1)(a) hereof;

  2. the first respondent contravened s.323(1) of the Fair Work Act 2009 (Cth) in that it failed to pay to the applicant, as was required by s.323(1) of the Fair Work Act, wages for the periods set out in declaration (1)(a) hereof;

  3. the first respondent contravened s.44 of the Fair Work Act in that it:

    (a)failed to pay to the applicant, pursuant to s.99 of the Fair Work Act, the amount of her base rate of pay for her ordinary hours of work for the following days:

    (i)18 July 2014;

    (ii)26 September 2014;

    (iii)29 September 2014;

    (iv)30 September 2014;

    (v)1 October 2014;

    (vi)17 October 2014;

    (vii)20 October 2014

    (viii)21 October 2014;

    (ix)22 October 2014;

    (x)23 October 2014; and

    (xi)24 October 2014;

    (b)failed to pay to the applicant, pursuant to s.90(2) of the Fair Work Act the amount of her accrued but unpaid annual leave.

  4. the first respondent contravened s.340(1) of the Fair Work Act in that it took adverse action against the applicant because she exercised a workplace right;

  5. the second respondent was, for the purposes of s.550(1) of the Fair Work Act, involved in each of the contraventions the subject of declarations (2), (3)(a),…

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Details
Case
[2015] FCCA 1140
Decision Date

CaseChat Overview and Summary

In *Sponza v Coal Face Resources Pty Ltd*, heard in the Federal Circuit Court of Australia, the applicant, Samantha Sponza, sought declarations and orders against the first respondent, Coal Face Resources Pty Ltd, and the second respondent, Jason Moultrie. The dispute concerned alleged breaches of an employment contract and contraventions of the *Fair Work Act 2009* (Cth), including failure to pay wages and superannuation, and adverse action taken against the applicant. The respondents failed to participate in the proceedings, leading to default judgment.

The court was required to determine whether the first respondent had breached the applicant's contract of employment by failing to pay wages and superannuation for specified periods. Additionally, the court had to consider whether the first respondent contravened sections 323(1), 44 (including sections 99 and 90(2)), and 340(1) of the *Fair Work Act 2009* (Cth). The court also needed to ascertain if the second respondent was involved in these contraventions for the purposes of section 550(1) of the Act.

The court found that the first respondent had breached the employment contract by failing to pay wages and superannuation for multiple periods between June and October 2014. It further declared that the first respondent contravened sections 323(1), 44, and 340(1) of the *Fair Work Act 2009* (Cth) by failing to pay wages, base rate of pay for ordinary hours, and accrued annual leave, and by taking adverse action against the applicant for exercising a workplace right. The court also declared that the second respondent was involved in these contraventions.

Consequently, the court ordered the first respondent to pay the applicant $28,269.22 for unpaid wages and $9,778.17 for unpaid superannuation. The first and second respondents were ordered jointly and severally to pay $28,269.22 for unpaid wages and $7,662.68 for untaken annual leave. Pecuniary penalties were imposed on the first respondent totalling $68,000 and on the second respondent totalling $13,500, with specific directions for payment to the Commonwealth and the applicant respectively.

Orders

Orders of the court

THE COURT DECLARES THAT:

1.

the first respondent has breached the contract of employment with the applicant made on 22 March, 2013 in that it:

(a) failed to pay to her wages due under the contract for the following periods:

(i) 9 June 2014 – 22 June 2014;

(ii) 7 July 2014 – 20 July 2014;

(iii) 21 July 2014 – 3 August 2014;

(iv) 1 September 2014 – 14 September 2014;

(v) 15 September 2014 – 28 September 2014;

(vi) 29 September 2014 – 12 October 2014; and

(vii) 13 October 2014 – 26 October 2014;

(b) failed to pay to her superannuation contributions due under the contract for the periods set out in declaration (1)(a) hereof;

2.

the first respondent contravened s.323(1) of the Fair Work Act 2009 (Cth) in that it failed to pay to the applicant, as was required by s.323(1) of the Fair Work Act, wages for the periods set out in declaration (1)(a) hereof;

3.

the first respondent contravened s.44 of the Fair Work Act in that it:

(a) failed to pay to the applicant, pursuant to s.99 of the Fair Work Act, the amount of her base rate of pay for her ordinary hours of work for the following days:

(i) 18 July 2014;

(ii) 26 September 2014;

(iii) 29 September 2014;

(iv) 30 September 2014;

(v) 1 October 2014;

(vi) 17 October 2014;

(vii) 20 October 2014

(viii) 21 October 2014;

(ix) 22 October 2014;

(x) 23 October 2014; and

(xi) 24 October 2014;

(b) failed to pay to the applicant, pursuant to s.90(2) of the Fair Work Act the amount of her accrued but unpaid annual leave.

4.

the first respondent contravened s.340(1) of the Fair Work Act in that it took adverse action against the applicant because she exercised a workplace right;

5.

the second respondent was, for the purposes of s.550(1) of the Fair Work Act, involved in each of the contraventions the subject of declarations (2), (3)(a), (3)(b) and (4) herein.

THE COURT ORDERS THAT:

6.

The first respondent pay the following damages for breach of contract to the applicant:

(a) $28,269.22 for accrued but unpaid gross wages; and

(b) $9,778.17 for accrued but unpaid superannuation payments.

7.

The first and second respondents, jointly and severally, pay to the applicant pursuant to s.545(1) of the Fair Work Act:

(a) $28,269.22 for accrued but unpaid gross wages; and

(b) $7,662.68 for accrued but untaken annual leave payments.

8.

The first respondent pay a pecuniary penalty:

(a) for its contravention set out in declaration (2) above of $25,500;

(b) for its contravention set out in declaration (3)(b) above of $17,000; and

(c) for its contravention set out in declaration (4) above of $25,500.

9.

The second respondent pay a pecuniary penalty:

(a) for his contravention set out in declaration (2) above of $5,100;

(b) for his contravention set out in declaration (3)(b) above of $3,400; and

(c) for his contravention set out in declaration (4) above of $5,100.

10.

The penalties ordered against the first respondent in order 8 hereof be paid to the Commonwealth within 28 days of the date of this order.

11.

The penalties ordered against the second respondent in order 9 hereof be paid to the applicant, or at her direction, within 28 days of the date of this order.

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT BRISBANE

BRG 1133 of 2014

SAMANTHA SPONZA

Applicant

And

COAL FACE RESOURCES PTY LTD

First Respondent

JASON MOULTRIE

Second Respondent

REASONS FOR JUDGMENT

1.

In these proceedings the applicant claims declarations that the first respondent has contravened certain provisions of the Fair Work Act 2009 (Cth), declarations that the second respondent was involved in those contraventions and is liable for them, orders for the payment of compensation by the first and second respondents for the alleged breaches and the imposition of penalties on each of the respondents for the alleged contraventions.

2.

The respondents have not appeared in the proceedings. The respondents are in default for the purposes of rule 13.03A(2) of the Federal Circuit Rules 2001 (Cth). The applicant applies for judgment pursuant to FCCR 13.03B(2)(c) and relief in the terms sought in her amended statement of claim filed on 27 April, 2015.

3.

The proceedings were commenced on 11 December, 2014 by the filing of an application and statement of claim. On 23 February, 2015 I made a substituted service order for the service of the initiating documents on the second respondent.

4.

On 25 February, 2015 and in compliance with the order, the application and statement of claim were served upon the second respondent. On the same day, a copy of the application and statement of claim was sent to the first respondent’s registered office. I am satisfied that the respondents have been served with the application and statement of claim in this matter.

5.

By correspondence sent on 24 March, 2015 the first and second respondents were notified that their failure to file a response and defence in the application was a non-compliance with both the Federal Circuit Court Rules and an order that I made about the filing of those documents on 23 February, 2015. The respondents were put on notice that if they did not file a response and defence by 27 March, 2015 the applicant would seek default orders in respect of the relief claimed in her application and statement of claim.

6.

The respondents have not participated in the proceedings in any way. As I have set out above the respondents are in default within the meaning of FCCR 13.03A(2). In the circumstances, the Court may give judgment against the respondents for the relief that the applicant appears entitled to on the statement of claim and that the Court is satisfied it has power to grant.

7.

When the matter came before me on 27 April, 2015, the applicant sought, and I granted leave to amend the statement of claim to correct some minor errors in the original statement of claim. It was my view then, and I remain of the view, that those amendments cannot prejudice the respondents even though they have not been foreshadowed to them.

8.

Ordinarily, to proceed to default judgment pursuant to FCCR 13.03B(2)(c), no evidence is necessary. However, in these proceedings the applicant seeks the imposition of pecuniary penalties on the respondents for their contraventions of the Fair Work Act. In Fair Work Ombudsman v Fed Up Deli & Catering Pty Ltd [2012] FMCA 738 I summarised the principles relating to an order for default judgment under FCCR 13.03B(2)(c) (rule 13.03B(2)(c) of the

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