Fair Work Ombudsman v AAA Aussie Emergency Glass Pty Ltd [2025] FedCFamC2G 1383

Endorsement pursuant to Rule 25.07 of the Federal Circuit and Family Court of

Australia (Div 2) (General Federal Law) Rules 2021 (Cth)

Should any Party fail to comply with any order of the Court referred to above, the

defaulting Party may be liable to imprisonment, sequestration of property or

punishment for contempt.

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)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Compliance Notices issued to the first respondent prior to the commencement of the subject proceeding were not complied with.
2. On 8 April 2025, the following orders and declarations were made in the proceeding:

IT IS ORDERED THAT:

1. Default judgment be entered against the First and Second Respondents pursuant to rule 13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules), by reason of the First and Second Respondents' default pursuant to rule 13.04(2) of the Rules by their failure to:

(a) give an address for service before the time for the Respondent to give an address has expired (rule 13.04(2)(b)(i));

(b) file a response before the time for the Respondent to file a Response has expired (rule 13.04(2)(b)(ii));

(c) file a defence as required by r 4.04(3)(a) (rule 13.04(2)(b)(iv)); and

(d) defend the proceedings with due diligence (rule 13.04(2)(b)(vii)).

1. Upon admissions taken to have been made by reason of the First Respondent's default, a declaration be made that the First Respondent:

(a) contravened section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with:

(i) a compliance notice given to the First Respondent on 22 December 2020 in respect of Ms Diane Line (Line Compliance Notice);

(ii) a compliance notice given to the First Respondent on 29 March 2021 in respect of Mr Craig Fisher (Fisher Compliance Notice);

(iii) a compliance notice given to the First Respondent on 29 March 2021 in respect of Mr Andrew Simpson (Simpson Compliance Notice);

(iv) a compliance notice given to the First Respondent on 29 Mar2021 in respect of Mr William Kelly (Kelly Compliance Notice); and

(b) contravened section 712(3) of the FW Act by failing to comply with a Notice to Produce given to the First Respondent on 18 November 2020 (Notice to Produce).

1. Upon admissions taken to have been made by reason of the Second Respondent's default, a declaration be made that the Second Respondent was involved within the meaning of section 550(2) of the FW Act, in the First Respondent's contraventions of:

(a) section 716(5) of the FW Act by failing to comply with the Fisher Compliance Notice, Simpson Compliance Notice, and Kelly Compliance Notice; and

(b) section 712(3) of the FW Act by failing to comply with the Notice to Produce.

(a) pursuant to section 545(1) of the FW Act, the First Respondent is ordered within 28 days of this order, to:

(i) remedy the direct effects of the contraventions set out in the Line Compliance Notice by paying $1,826.26 (gross) to the Applicant;

(ii) remedy the direct effects of the contravention set out in the Fisher Compliance Notice by paying $2,390.50 (gross) to the Applicant;

(iii) remedy the direct effects of the contravention set out in the Simpson Compliance Notice by paying $2,339.21 (gross) to the Applicant;

(iv) remedy the direct effects of the contravention set out in the Kelly Compliance Notice by paying $1,038.56 to the Applicant;

(b) pursuant to section 547(2) of the FW Act, the First Respondent is ordered to pay interest calculated in accordance with the Federal Court of Australia's Interest on Judgments Practice Note (GPN-INT) on the amounts set out in order 4(a)(i)-(iv) to the Applicant within 28 days of this order:

(i) $435.22 in respect of 4(a)(i);

(ii) $569.68 in respect of 4(a)(ii);

(iii) $557.46 in respect of 4(a)(iii);

(iv) $247.50 in respect of 4(a)(iv); and

(c) the Applicant distribute to the Employees the amounts paid to the Applicant pursuant to orders 4(a)(i)-(iv) and 4(b)(i)-(iv) within 90 days of the payments being made by the First Respondent.

1. The Applicant forthwith serve copies of the Court orders on the First and Second Respondents by express post as soon as they are made available by the Court by:

(a) posting it to the First Respondent at the following address: 54-56 Spanns Road Beenleigh Qld 4207; and

(b) by emailing it to the First and Second Respondents at the following email addresses: mick@aussieglass.com.au and repairs@aussieglass.com.au.

1. The matter is adjourned to 9:45am on 20 August 2025 for a further hearing in respect of the Applicant's claim for such pecuniary penalties to be imposed on the First and Second Respondents for the contraventions declared at 2 and 3 above.

7. Evidence in chief on the question of penalty be by way of affidavit.

1. The Applicant file and serve any evidence upon which it intends to rely and an outline of submissions relating to penalty by no later than 21 days prior to the date of the hearing fixed pursuant to order 6 above.
2. The First and Second Respondents file and serve any evidence upon which they intend to rely and an outline of submissions relating to penalty by no later than 14 days prior to the date of the hearing fixed pursuant to order 6 above.
3. The Applicant file and serve any reply submissions and / or any reply evidence relating to penalty by no later than 7 days prior to the date of the hearing fixed pursuant to order 6 above.
4. The parties have liberty to apply on the giving of two (2) days' notice, each to the other.

1. The respondents have failed to participate in the proceeding in any respect.
2. The respondents have failed to show any contrition for the contraventions by them of provisions of the Fair Work Act (2009) (Cth) (the Act).
3. The first respondent has failed to comply with any of the Orders as set out in Order 4 of the Orders of the Court made on 8 April 2025. [1] Employees of the first respondent are still owed money as set out in the relevant order.
4. The first respondent has in the past failed to comply with Fair Work Commission Orders in contravention of the provisions of s. 405 of the Act. On 18 May 2015, a Judge of this Court entered default judgment against the first respondent for its contravention of provisions of the Act. A pecuniary penalty in the amount of $35,500.00 was imposed upon the first respondent in respect of such contraventions at the time. Payment of that debt was only finalised in or about November 2021. [2]

1. It is important that all businesses, big and small, comply with workplace relations legislation, and that they be deterred from breaching such legislation. In Kelly v Fitzpatrick [2007] FCA 1080 at [28], when considering that very question, Tracy J said as follows:

"[28] The respondents have expressed contrition and have put in place mechanisms which are designed to ensure that there will be no repetition of the breaches which have led to the present proceeding. Specific deterrence does not, therefore, loom large as a consideration in determining penalty. It does not follow that the need for general deterrence may be disregarded. As Finkelstein J said in CPSU v Telstra Corporation Limited [2001] FCA 1364; (2001) 108 IR 228 at 231: "even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law's disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct ..." No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction "must be imposed at a meaningful level": see Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] FCA 383; [2001] ATPR 41-815 at [13]."

1. The Court has had regard to the principle that whilst any penalty imposed must not be crushing or oppressive, it must be commensurate with the seriousness of the conduct engaged in by the respondents.
2. In Fair Work Ombudsman v Equine Robinson Pty Ltd [2023] FedCFamC2G 159 at [11] - [13] it was held as follows:
   1. The Court accepts that there is a need for general deterrence when it imposes a pecuniary penalty for contraventions of the FWA. In the case of a company, an expression of contrition for the offending conduct is most clearly seen by the way the corporation has taken steps to alleviate its wrongdoing and change its behaviour. (ACE Insurance Ltd v Trifunovski (No. 2) [2012] FCA 793 at [113] - [114] per Perram J)
   2. In circumstances where there has been no acknowledged contrition on the part of the respondents, and further where there has been no payment to the relevant employee of money owed to them by the first respondent, the fact of co-operation in the preparation of the SOAF does not relieve the Court of the responsibility of imposing pecuniary penalties which actually will deter future contraventions of the FWA. (Fair Work Ombudsman v AJR Nominees Pty Ltd (No. 2) [2014] FCA 128 at [50] per Gilmour J)
   3. When considering what the appropriate penalty ought to be, discounting is only relevant where there has been actual contrition and a demonstrated desire on the part of the offenders to remedy their recalcitrant behaviour. In the present matter, such positive behaviour has been absent. No discounting ought to apply as a consequence.
3. The First Respondent has not been deterred from committing contraventions of the Act notwithstanding the imposition of earlier penalties upon it. The Second Respondent has relevantly been involved in such contraventions. Though the sums owed to employees of the First Respondent in the present matter are not high, the principles regarding deterrence apply equally irrespective of the amounts which are owed to employees.
4. The Court considers it appropriate that any pecuniary penalty payable is in an amount proportionate to the deterrence required. Accordingly, and having considered that there ought to be no reduction in the amount of penalty payable due to the lack of participation by the respondents in the proceeding, the Court considers that pecuniary penalties ought to be imposed and ordered as follows:

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

[1] Paragraph [41] - [42] of the affidavit of Joanne Latz filed on 30 July 2025.

[2] Paragraphs [45] - [47] inclusive of the Latz affidavit.