Tyson v Heiko Constructions trading as Heiko Constructions Pty Ltd - [2021] FedCFamC2G 212

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tyson v Heiko Constructions trading as Heiko Constructions Pty Ltd [2021] FedCFamC2G 212

File number(s): BRG 823 of 2018

Judgment of: JUDGE VASTA

Date of judgment: 5 November 2021

Catchwords: INDUSTRIAL LAW – assessment of compensation for contravention of s 348 Fair Work Act 2009 (Cth) – pecuniary penalty – worst case – penalty to be paid to the applicant

Legislation: Fair Work Act 2009 (Cth), ss 3, 336, 340, 343, 348, 539, 545, 546

Cases cited:
Commonwealth of Australia v Director, Fair Work Building IndustryInspectorate [2015] HCA 46

Maritime Union of Australia & Anor v Fair Work Ombudsman [2016] FCAFC 102

Mason & Harrington Corporation Pty Ltd t/as Pangea Restaurant & Bar [2007] FMCA 7

R v Keenan [2009] QCA 236

R v Manson [1974] QR 202

Division: Division 2 General Federal Law

Number of paragraphs: 62

Date of last submission/s: 21 October 2021

Date of hearing: 21 October 2021

Place: Brisbane

Counsel for the Applicant: Dr Grienke and Mr Mackie

Solicitor for the Applicant: Cate & Co Lawyers And Associates

Counsel for the Respondents: Mr Martin

Solicitor for the Respondents: Chancery Legal Pty Ltd

Counsel for the Intervener: Mr Denton

Solicitor for the Intervener: Australian Building And Construction Commissioner
ORDERS

BRG 823 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
JOHN ROBERT TYSON

Applicant

AND:
HEIKO CONSTRUCTIONS TRADING AS HEIKO CONSTRUCTIONS PTY LTD

Respondent

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Intervener

ORDER MADE BY:

JUDGE VASTA

DATE OF ORDER:

5 NOVEMBER 2021

THE COURT ORDERS THAT:
1. Pursuant to s 546(1) of the Fair Work Act 2009 (Cth) (“the FW Act”), the Respondent pay a pecuniary penalty of $60,000.00
2. Pursuant to s 546(3) of the FW Act, the Respondent pay the pecuniary penalty to the Applicant within 28 days of this order.
3. Pursuant to s 545(2)(b) of the FW Act, the Respondent pay to the Applicant compensation in the sum of $7,000.00 within 28 days of this order.

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 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION

On 12 December 2019, I made an order declaring that the Respondent had contravened s 348 of the Fair Work Act 2009 (Cth) (“the FW Act”) but otherwise dismissed the application. I was ready to hear arguments as to compensation and pecuniary penalty but had yet to set a date for that hearing. The Respondent asked that the matter be adjourned sine die because they wished to seek leave to appeal my decision. A single judge of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FedCFamC2G 212
Decision Date: 5 November 2021

CaseChat Overview and Summary

The case of Tyson v Heiko Constructions trading as Heiko Constructions Pty Ltd, heard in the Federal Circuit and Family Court of Australia, involved the applicant, John Robert Tyson, seeking compensation from the respondent, Heiko Constructions, for alleged contraventions of section 348 of the Fair Work Act 2009 (Cth). The Australian Building and Construction Commissioner intervened in the proceedings. The central dispute revolved around the assessment of pecuniary penalties and compensation owed to the applicant due to the respondent's non-compliance with specific provisions of the Fair Work Act.

The primary legal issue before the court was the determination of an appropriate pecuniary penalty under section 546 of the FW Act, as well as the calculation of compensation under section 545(2)(b) of the same Act. The court had to consider the seriousness of the contraventions, the worst-case scenario in terms of pecuniary penalty, and whether the compensation awarded was adequate to cover the applicant's losses. The court was also tasked with ensuring that the penalty was sufficient to deter future non-compliance by the respondent.

In reaching its decision, the court evaluated the nature and severity of the contraventions committed by the respondent. It concluded that the respondent's actions warranted a significant penalty to ensure compliance with the Fair Work Act and to deter similar future breaches. The court found that a pecuniary penalty of $60,000 was appropriate, reflecting the worst-case scenario as per the statutory provisions. Additionally, the court determined that the compensation payable to the applicant should be $7,000. This amount was considered adequate to cover the applicant's losses directly attributable to the contraventions. The court made clear that these amounts were to be paid within 28 days of the order, ensuring timely redress for the applicant.

Orders

Orders of the court

ORDERS

BRG 823 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

JOHN ROBERT TYSON

Applicant

AND:

HEIKO CONSTRUCTIONS TRADING AS HEIKO CONSTRUCTIONS PTY LTD

Respondent

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Intervener

ORDER MADE BY:

JUDGE VASTA

DATE OF ORDER:

5 NOVEMBER 2021

THE COURT ORDERS THAT:

1. Pursuant to s 546(1) of the Fair Work Act 2009 (Cth) (“the FW Act”), the Respondent pay a pecuniary penalty of $60,000.00

2. Pursuant to s 546(3) of the FW Act, the Respondent pay the pecuniary penalty to the Applicant within 28 days of this order.

3. Pursuant to s 545(2)(b) of the FW Act, the Respondent pay to the Applicant compensation in the sum of $7,000.00 within 28 days of this order.

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 2021 (Cth).

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRG 823 of 2018
Judgment of:	JUDGE VASTA
Date of judgment:	5 November 2021
Catchwords:	INDUSTRIAL LAW – assessment of compensation for contravention of s 348 Fair Work Act 2009 (Cth) – pecuniary penalty – worst case – penalty to be paid to the applicant
Legislation:	Fair Work Act 2009 (Cth), ss 3, 336, 340, 343, 348, 539, 545, 546
Cases cited:	Commonwealth of Australia v Director, Fair Work Building IndustryInspectorate [2015] HCA 46 Maritime Union of Australia & Anor v Fair Work Ombudsman [2016] FCAFC 102 Mason & Harrington Corporation Pty Ltd t/as Pangea Restaurant & Bar [2007] FMCA 7 R v Keenan [2009] QCA 236 R v Manson [1974] QR 202
Division:	Division 2 General Federal Law
Number of paragraphs:	62
Date of last submission/s:	21 October 2021
Date of hearing:	21 October 2021
Place:	Brisbane
Counsel for the Applicant:	Dr Grienke and Mr Mackie
Solicitor for the Applicant:	Cate & Co Lawyers And Associates
Counsel for the Respondents:	Mr Martin
Solicitor for the Respondents:	Chancery Legal Pty Ltd
Counsel for the Intervener:	Mr Denton
Solicitor for the Intervener:	Australian Building And Construction Commissioner

BRG 823 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	JOHN ROBERT TYSON Applicant
AND:	HEIKO CONSTRUCTIONS TRADING AS HEIKO CONSTRUCTIONS PTY LTD Respondent
AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Intervener

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	5 NOVEMBER 2021