Wu v DSMJ (No 3)

Case [2025] FedCFamC2G 129


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Wu v DSMJ Pty Ltd (No 3) [2025] FedCFamC2G 129

File number: SYG 541 of 2022
Judgment of: JUDGE D HUMPHREYS
Date of judgment: 7 February 2025
Catchwords: FAIR WORK - penalty judgment– where the respondent contravened s 45 of the Fair Work Act 2009 (Cth) – no loss or damage occasioned to the applicant – need to ensure - necessary to ensure specific and general deterrence – assessment of penalty.
Legislation:

Fair Work Act 2009 (Cth) ss 45, 333, 546(3)(c)

Professional Employees Award 2020 cl 3.3

Cases cited:

Association of Professional Engineers, Scientists and Managers Australia v Peabody Energy Australia Coal Pty Ltd (2022) 318 IR 113; [2022] FCA 945

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

Australian Meat Industries Employees Union v Dick Stone (No 2) [2022] FCA 1263

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560

Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276; [2002] FCA 349

Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482

Fair Work Ombudsman v Nobrace Centre Pty Ltd(in Liquidation) [2019] FCCA 2970

Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown [2017] FCA 1301

Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7

Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70

Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia & Ors (2001) 110 IR 372

Wu v DSMJ Pty Ltd (No 2) [2023] FedCFamC2G 1056

Wu v DSMJ Pty Ltd (No 2) [2024] FCA 1404.

Division: Division 2 General Federal Law
Number of paragraphs: 32
Date of last submissions: 3 February 2025
Place: Parramatta
Solicitor for the Applicant: Self-represented litigant
Counsel for the First Respondent: Ms Brigden
Solicitor for the First, Second, Third, Fourth and Fifth Respondents: Ms Lee (People & Culture Strategies)

ORDERS

SYG 541 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

JIANHUA WU

Applicant

AND:

DSMJ PTY LTD

First Respondent

JOE COLON

Second Respondent

MEGAN FARRELL (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

JUDGE D HUMPHREYS

DATE OF ORDER:

7 FEBRUARY 2025

THE COURT ORDERS THAT:

1.Pursuant to s 546(1) of the Fair Work Act2009 (Cth) the Respondent pay a pecuniary penalty to the Applicant with respect to the contravention of s 45 of the Fair Work Act 2009 (Cth) and cl 3.3 of the Professional Employees Award 2020 in the amount of $12,500.00 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)),…

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AGLC
Wu v DSMJ (No 3) [2025] FedCFamC2G 129
Case
[2025] FedCFamC2G 129
Decision Date

CaseChat Overview and Summary

The matter of Wu v DSMJ (No 3) was heard in the Fair Work Commission, where the applicant, Mr Wu, alleged that the respondent, DSMJ, had contravened section 45 of the Fair Work Act 2009. The dispute centred on the application of an award to the respondent’s business, with Mr Wu asserting that DSMJ had failed to pay him the correct wages in accordance with the applicable industrial award. The Court was required to determine whether DSMJ had indeed contravened the Act, and if so, to assess an appropriate penalty.

The primary legal issue before the Court was whether DSMJ had contravened section 45 of the Fair Work Act by not adhering to the terms of the applicable award. The Court also had to consider the appropriate penalty to impose, taking into account various factors, including the nature of the contravention, any loss or damage to the applicant, and the necessity for specific and general deterrence. DSMJ argued that the contravention was due to a mistaken belief that the award did not apply to their business, and they tendered an apology and had taken corrective action. Mr Wu, on the other hand, submitted that a penalty should be imposed to ensure compliance with the Act and to deter future breaches.

In determining the penalty, the Court considered that this was a single contravention and did not necessitate following the pathway set out by Bromwich J in NSH. The Court acknowledged the respondent’s mistaken belief and accepted the tendered apology and corrective actions. It was noted that there was no actual loss or damage to Mr Wu due to the contravention. The maximum penalty for the contravention was determined to be $66,600.00. However, the Court concluded that a penalty of $12,500.00 was sufficient to ensure both specific and general deterrence, given the technical nature of the breach. This amount was deemed appropriate to act as a deterrent both specifically to DSMJ and generally to other potential contraveners.

The Court ordered that the penalty of $12,500.00 be paid by DSMJ to Mr Wu within 28 days. This decision underscores the importance of adhering to industrial awards and the consequences of non-compliance, while also taking into account mitigating factors in the assessment of penalties.

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

DSM J

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Ratio Decidendi

Legal Principle Established

Established by: DSM J

In terms of payment of the penalty, it was properly submitted that the usual course in proceedings would be for the penalty to be paid directly to the applicant.CONSIDERATION This matter involves a single contravention and accordingly it is not necessary to follow the pathway set out by the Bromwich J in NSH. The Court accepts and adopts the submissions of the respondent insofar as they relate to the considerations related to the assessment of penalty. The Court accepts that this was a case of a mistaken belief that the award was not applicable to the respondent. The Court accepts the apology tendered on behalf of the respondent and notes that corrective action has been taken. The Court notes that there is no actual loss or damage occasioned to the applicant as a result of the contravention. The Court accepts that the maximum penalty payable in respect of this contravention is $66,600.00. Whilst a technical breach in many aspects, there was still a need to impose a penalty which is such as to ensure there is both specific and general deterrence. It would not be appropriate to impose a nominal penalty only. Taking all the relevant matters into account, the appropriate penalty in this matter is $12,500.00. The Court is satisfied this is sufficient to act as a deterrent both at a specific level and to act as a general deterent. This amount is to be paid by the first respondent to the applicant within 28 days.