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 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…
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- Case
- [2021] FedCFamC2G 212
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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