Yes Insurance Group Pty Ltd v Fair Work Ombudsman

In this case, Yes Insurance Group Pty Ltd and its sole director and shareholder, Ms Kimonides, appealed against the Federal Circuit and Family Court of Australia's decision to impose pecuniary penalties on them. The appeal arose from the Fair Work Ombudsman's issuance of a compliance notice under section 716 of the Fair Work Act 2009 (Cth) requiring Yes Insurance to pay an employee in accordance with the Banking, Finance and Insurance Award 2020. The appellants argued that the primary judge erred in determining that the Banking, Finance and Insurance Award applied to the employee in question, that the primary judge failed to afford procedural fairness, and that the penalties imposed were excessive.

The central legal issues before the court were whether the primary judge correctly found that the Banking, Finance and Insurance Award applied to the employee and the division of Yes Insurance providing roadside assistance services, and whether the primary judge erred in imposing the penalties. The court needed to assess the correctness of the primary judge's findings regarding the applicability of the award and the procedural fairness in reaching those findings. Additionally, the court had to determine whether the penalties were excessive and, if so, what the appropriate penalty should be.

The court found that the primary judge's conclusion about the application of the Banking, Finance and Insurance Award was not attended by error, nor was there any denial of procedural fairness. However, the penalties imposed by the primary judge were beyond what could reasonably be imposed in the circumstances. The court considered that the primary judge should have taken into account the appellants' capacity to pay and the deterrent effect of the penalties. Therefore, the penalties imposed were set aside and replaced with lower penalties of $8,325.00 for Yes Insurance and $1,665.00 for Ms Kimonides.

In summary, the appeal was allowed in part. The penalties imposed by the primary judge were set aside and replaced with lower penalties. Yes Insurance and Ms Kimonides were ordered to pay $8,325.00 and $1,665.00 respectively, within 28 days of the date of the order.