FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Waknin v Servcorp Administration Pty Ltd (No 2) [2023] FedCFamC2G 757
File number(s): SYG 207 of 2022 Judgment of: JUDGE D HUMPHREYS Date of judgment: 22 August 2023 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – penalty hearing – failure to provide written notice of termination. Legislation: Fair Work Act 2009 (Cth) s 44, 117
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05
Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301
Fair Work Ombudsman v Nobrace Centre Pty Ltd (in Liquidation) [2019] FCCA 2970
Canturi v Sita Coaches Pty Ltd (2002) FCA 349
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia (2001) 110 IR 372
Ingersole v Castle Hill Country Club Ltd [2015] FCCA 1055
Seyer v Gatwood Management Pty Ltd (No 2) [2023] FedCFamC2G 484
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of last submission/s: 31 July 2023 Date of hearing: In Chambers Place: Parramatta Counsel for the Applicant: Ms Perigo Solicitor for the Respondent: Holman Webb Lawyers ORDERS
SYG 207 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DANIEL WAKNIN
Applicant
AND: SERVCORP ADMINISTRATION PTY LTD ACN 102 643 667
Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
22 August 2023
THE COURT ORDERS THAT:
1.Pursuant to s 546 of the Fair Work Act 2009 (Cth) (“the Act”), the Respondent to pay a pecuniary penalty in the amount of $30,000.00 for declarations made on 19 July 2023 that the Respondent contravened ss 44 and 117 of the Act by failing to provide the Applicant with written notice of his termination before the minimum period of notice.
2.Pursuant to s 546(3)(c) of the Act, the amount ordered in order 1 above be paid to the Applicant within 28 days of the date of these orders.
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 D HUMPHREYS
INTRODUCTION
This judgment concerns the quantum of pecuniary penalties to be imposed on the respondent, Servcorp Administration Pty Ltd (“Servcorp”), following findings in Waknin v Servcorp Administration Pty Ltd [2023] FedCFamC2G 634. In that judgment, the Court found that…
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- Case
- [2023] FedCFamC2G 757
- Decision Date
CaseChat Overview and Summary
The court noted that the determination of the penalty was to be conducted on the basis of the papers without a substantive hearing, as the parties had agreed to this approach. The court reviewed the statutory framework and relevant case law to guide its discretion in fixing the penalty. It applied the principles outlined in Australian Building and Construction Commissioner v Pattinson and Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown, considering each contravention separately and the overall conduct of the respondent. The court acknowledged the broad discretion afforded to it in setting penalties, ensuring that they are reasonably necessary to achieve the deterrence of future contraventions. The court also noted the importance of ensuring that the penalty is proportionate to the respondent’s conduct and does not result in double penalisation for overlapping contraventions.
Following its review, the court amended the previous declaration to include the contravention of section 44 of the Act, as per the application of the applicant and the acceptance of the respondent. The court calculated the penalty, taking into account the nature and seriousness of the contraventions, the deterrence principle, and the totality of the respondent's conduct. The court concluded that the penalty should reflect the need to deter future contraventions by the respondent and others, while also being proportionate to the respondent's actions. The final orders included the amended declaration and the imposition of the determined penalty on the respondent.
Orders
Orders of the court
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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
The Court notes that the parties have agreed and confirmed that the determination of the pecuniary penalty can occur on the papers without the need for a substantive hearing.THE FORM OF DECLARATIONS On behalf of the applicant, it was contended that the declaration made by the Court on 19 July 2023 should be amended to include that the respondent breached s 44 of the Act. The respondent does not oppose the applicant’s proposed variation to the declaration and accepts that s 44 of the Act requires an employer not to contravene a provision of the National Employer Standards, of which s 117 of the Act is part. The Court proposes to amend the previous declaration pursuant to r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to include the contravention of s 44 of the Act.THE LAW ON PENALTY IN FAIR WORK MATTERS The Court has a broad discretion as to penalty. In Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 at [71], it was stated that the Court should fix a penalty “it considers fairly and reasonably to be appropriate to protect the public interest from future contraventions of the Act”. Further, at [10], the High Court stated that the penalty must not exceed what is “reasonably necessary to achieve the purpose of section 546: the deterrence of future contraventions of a like kind by the contravener and others”. In Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301, Bromwich J summarised how the discretion is to be approached at [36], as follows: 1) 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. 2) Consider whether each separate contraventions should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the Act provides that two or more contraventions of a given civil remedy provision 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. 3) Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did. 4) Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation. 5) Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (CFMEU Civil Penalties Case) at [64]) and what is proposed by the respondents, 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: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].