Burgess v Unique Support Services

1. Section 546(1) of the Fair Work Act allows the Court to order that a person pay a pecuniary penalty that the Court considers to be appropriate if the Court is satisfied that the person has contravened a civil remedy provision. Section 340(1) of the Fair Work Act is a civil remedy provision: see item 11 of the table in s 539(2) of the Fair Work Act. The primary purpose of imposing a penalty is deterrence: Australian Building and Construction Commissioner v Pattinson & Anor (2022) 274 CLR 450; [2022] HCA 13 (Pattinson) at [15].
2. The steps that the Court will ordinarily take in determining an appropriate penalty were summarised in Fair Work Ombudsman v NSN Pty Ltd (t/as New Shanghai Charlestown) (2017) 275 IR 148; [2017] FCA 1301. The five steps summarised at [36] of that judgment are:

1. The approach that a court should take when determining the appropriate penalty was considered by the High Court in Pattinson. In that case, the High Court held that the power conferred by s 546 of the Fair Work Act is not constrained by the criminal law notion of proportionality and there is nothing in the text, context or purpose of s 546 which requires that the maximum penalty be reserved for the most serious cases: Pattinson at [10], [49], [50]. The task of the Court remains to determine the 'appropriate' penalty in the circumstances of the particular case: Pattinson at [19]. An 'appropriate' penalty is one that 'strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case': Pattinson at [46].
2. The types of factors which can inform an assessment of what amounts to an appropriate penalty, as set out in Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [14],[1] are:
   • The nature and extent of the conduct which led to the breaches.
   • The circumstances in which that conduct took place.
   • The nature and extent of any loss or damage sustained as a result of the breaches.
   • Whether there had been similar previous conduct by the respondent.
   • Whether the breaches were properly distinct or arose out of the one course of conduct.
   • The size of the business enterprise involved.
   • Whether or not the breaches were deliberate.
   • Whether senior management was involved in the breaches.
   • Whether the party committing the breach had exhibited contrition.
   • Whether the party committing the breach had taken corrective action.
   • Whether the party committing the breach had cooperated with the enforcement authorities.

1. In this case, I take into account the need for general and specific deterrence. In circumstances where there is a single course of conduct and there is no evidence before the Court to suggest that Unique Support Services has engaged in similar conduct with other employees, the need for specific deterrence is relatively low.
2. General deterrence must serve a purpose that the penalty is not seen by others as 'the cost of doing business': Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290 at [27]. A penalty should be sufficiently high to be 'likely to act as a deterrent in preventing similar contraventions by like-minded persons or organisations': Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65 at [93].
3. Justice Marshall emphasised the importance of general deterrence in Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557 at [29] when he said:

1. Ms Burgess seeks that the penalty be payable to her. Unique Support Services expresses no view on this.
2. Section 546(3)(c) allows the Court to order that the penalty be paid to a particular person. In circumstances where Ms Burgess is the person affected by the contravention and the person who commenced and maintained this enforcement proceeding under the Fair Work Act, it is appropriate that the penalty be paid to her: see Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336; [2016] FCAFC 4 at [116].

(2007) 158 FCR 543

(2017) 275 IR 148

(2007) 166 IR 14

(2022) 274 CLR 450

(2016) 239 FCR 336