FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WORKPLACE OMBUDSMAN v KSN ENGINEERING PTY LTD | [2009] FMCA 538 |
| INDUSTRIAL LAW – Penalty – contravention of civil penalty provision – agreed facts – agreed penalty – consideration of factors relevant to penalty where penalty agreed. INDUSTRIAL LAW – Penalty – whether size and financial resources and capacity to pay are factors relevant to determination of quantum of penalty. |
| Fair Work Act 2009 (Cth) Workplace Relations Act 1996 (Cth), ss.182, 719 |
| Carr v CEPU & Anor [2007] FMCA 1526 CFMEU v Austral Bricks (Qld) Pty Ltd (2009) 178 IR 470; [2009] FMCA 143 Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847 Hanssen Pty Ltd v Jones (2009) 179 IR 57; [2009] FCA 192 Jones v Hanssen Pty Ltd [2008] FMCA 291 Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 Lawlor v Personal Hire Pty Ltd (2009) 179 IR 91; [2009] FMCA 228 Mason v Harrington Corporation [2007] FMCA 7 Olsen v Sterling Crown Pty Ltd (2008) 177 IR 337; [2008] FMCA 1392 Workplace Ombudsman v Saya Cleaning Pty Ltd [2009] FMCA 38 |
| Applicant: | WORKPLACE OMBUDSMAN |
| Respondent: | KSN ENGINEERING PTY LTD |
| File Number: | PEG 76 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | On the papers |
| Date of Last Submission: | 2 June 2009 |
| Delivered at: | Perth |
| Delivered on: | 16 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Davies |
| Solicitors for the Applicant: | Blake Dawson |
| Counsel for the Respondent: | Mr S Billing |
| Solicitors for the Respondent: | DLA Phillips Fox |
DECLARATIONS AND ORDERS
DECLARATIONS
The respondent contravened s.182 of the Workplace Relations Act 1996 (Cth) by failing to pay Myeong Bae Choi weekly or fortnightly for ordinary hours of work for the weeks ending:
(a)16 July 2006;
(b)23 July 2006;
(c)30 July 2006;
(d)6 August 2006; and
(e)13 August 2006,
with total underpayments amounting to $3332.98 (gross) or $2797.98 (net).
The respondent contravened s.182 of the Workplace Relations Act 1996 (Cth) by failing to pay Eung Dae Lee weekly or fortnightly for ordinary hours of work for the weeks ending:
(a)2 April 2006; and
(b)9 April 2006,
with total underpayments amounting to $833.25 (gross) or $729.25 (net).
The respondent contravened s.182 of the Workplace Relations Act 1996 (Cth) by failing to pay Gyeong Yeong Choe weekly or fortnightly for ordinary hours of work for the weeks ending:
(a)28 April 2006;
(b)5 May 2006;
(c)12 May 2006; and
(d)19 May 2006,
with total underpayments amounting to $1932.22 (gross) or $1680.22 (net).
ORDERS
A penalty of $10,000 be imposed on the respondent in respect of the above contraventions pursuant to s.719 of the Workplace Relations Act 1996 (Cth).
The respondent pay the penalty to the Commonwealth of Australia within 14 days of judgment.
The funds held in escrow be released for the purposes of paying the penalty.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 76 of 2009
| WORKPLACE OMBUDSMAN |
Applicant
And
| KSN ENGINEERING PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under…
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- Case
- [2009] FMCA 538
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the size, financial resources, and capacity to pay of the respondent were relevant factors in determining the penalty, despite the parties agreeing on the penalty amount. The court had to consider whether these factors could still play a role in the penalty determination. The court also needed to ensure that the penalty was just and appropriate under the circumstances, despite the agreement on the penalty amount.
In its reasoning, the court held that while the parties had agreed on the penalty amount, the court was still required to consider relevant factors such as the size, financial resources, and capacity to pay of the respondent. The court found these factors pertinent to ensuring the penalty was proportionate and served the purpose of deterrence and compliance. The agreed penalty amount was deemed appropriate after considering these factors, and the court imposed the penalty as agreed. The court also ordered the respondent to pay the penalty within 14 days and directed the release of funds held in escrow for this purpose.
Orders
Orders of the court
4.
A penalty of $10,000 be imposed on the respondent in respect of the above contraventions pursuant to s.719 of the Workplace Relations Act 1996 (Cth).
5.
The respondent pay the penalty to the Commonwealth of Australia within 14 days of judgment.
6.
The funds held in escrow be released for the purposes of paying the penalty.
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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