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
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 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
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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.