Fair Work Ombudsman v Corben [2025] FedCFamC2G 1943

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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. On 20 September 2024, the following declarations and orders were made by the Court in this proceeding:

IT IS ORDERED THAT:

1. Default judgment be entered for the Applicant against the Respondent 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 Respondent's default pursuant to rule 13.04(2) of the Rules by her failure to take each of the following steps:

2. file and serve a response and defence within 28 days of service as required by rules 4.03(3) and 4.04(3)(a) of the Rules;

3. comply with an order of the Court in the proceeding, being order 3 of the orders of the Court dated 23 May 2024; and

AND IT IS DECLARED THAT:

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

2. section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing to comply with the compliance notice issued on 5 December 2022 (Compliance Notice); and

3. section 536(3) of the FW Act by giving six payslips to employees which she knew to be false and misleading.

AND IT IS FURTHER ORDERED THAT:

1. Pursuant to section 545(1) of the FW Act, within 28 days of this order, the Respondent take the steps that were required by the Compliance Notice by:

2. paying the outstanding amount owed to Ms Tykeesha Fuller pursuant to the Compliance Notice of $3,130.93 (Fuller Outstanding Amount) to the Applicant;

3. paying to Ms Fuller's nominated superannuation fund any additional superannuation contributions required by clause 18.2 of the Cleaning Services Award 2020 (Award) to be paid due to the payment of the Fuller Outstanding Amount;

4. paying the outstanding amount owed to Ms Jaliyah Bell pursuant to the Compliance Notice of $2,452.02 (Bell Outstanding Amount) to the Applicant;

5. paying to Ms Bell's nominated superannuation fund any additional superannuation contributions required by clause 18.2 of the Award to be paid due to the payment of the Bell Outstanding Amount;

6. providing the Applicant with evidence of the Respondent's compliance with orders 3(a) to 3(d) above;

7. Pursuant to section 547(2) of the FW Act, within 28 days of this order, pay interest to the Applicant on the Fuller Outstanding Amount and Bell Underpayment Amounts pursuant to paragraphs 3(a) and 3(c)above to the Applicant at the applicable pre-judgment interest rate prescribed by the Federal Court of Australia;

8. The Applicant distribute to Tykeesha Fuller and Jaliyah Bell respectively the amounts paid to the Applicant pursuant to orders 3(a), 3(c) and 4 above within 120 days of the payments being made.

9. The matter be adjourned to a date to be fixed for a further hearing in respect of the Applicant's claim for penalties to be imposed on the Respondent pursuant to section 546(1) of the FW Act for the contraventions set out in order 2 above;

10. The Applicant file and serve evidence and submissions relating to penalty no later than 28 days prior to the date of the hearing fixed pursuant to order 6 above;

11. The Respondent file and serve evidence and submissions relating to penalty no later than 14 days prior to the date of the hearing fixed pursuant to order 6 above;

12. The Applicant file and serve any submissions in reply relating to penalty no later than 7 days prior to the date of the hearing fixed pursuant to order 6 above; and

13. Each party have liberty to apply on the giving of two (2) days' notice, each to the other.

1. By order of the Court made on 25 July 2025, the proceeding was listed for hearing on 31 October 2025. Orders 3 and 4 of the orders of the Court made that day were as follows:
   1. The Respondent shall file and serve evidence and submissions relating to penalty no later than 21 days prior to the date of the hearing fixed pursuant to order 1 above;
   2. The Applicant shall file and serve any further evidence and/or submissions relating to penalty no later than 7 days prior to the date of the hearing fixed pursuant to order 1 above;
2. On 31 October 2025, the respondent did not appear before the Court, and she was unrepresented. The hearing proceeded in her absence.
3. Based upon the affidavit evidence filed in support of the application for the imposition of pecuniary penalties, the Court is satisfied that the respondent failed to engage in any meaningful way following the issue and service upon her of the Compliance Notice. The amounts of $3,130.00 and $2,542.00 were not paid to the respective employees named Fuller and Bell.
4. It was further noted by the Court that the respondent has not made any payments of outstanding amounts pursuant to the Compliance Notice, nor has the respondent complied with Court orders made on 20 September 2024 requiring the payment of such outstanding amounts, further superannuation payments, or interest. Stated intentions on the part of the respondent to repay sums ordered to be paid were not brought to fruition.
5. The respondent failed to cooperate during the course of the proceedings instituted against her. She has not exhibited any contrition or shown any regret for her contravention of provisions of Fair Work legislation. [1]
6. The Court noted that the respondent was a sole trader. That does not excuse her from complying with important provisions of the Fair Work Act 2009 (Cth) (the Act). It is important that all businesses comply with workplace relations legislation, and that they be deterred from contravening the provisions of such legislation. In Kelly v Fitzpatrick [2007] FCA 1080 at [28], when considering that very question, Tracy J said as follows:

"[28] ... 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 also 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 respondent.

1. 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.
2. This was a case where the subject proceeding was required to be instituted because the respondent had failed to comply with the terms of the Compliance Notice.
3. It was submitted on behalf of the applicant that in respect of the Compliance Notice contravention, a penalty of $6,600.00 represented 80% of the maximum penalty for such contravention, and that a penalty of $8,658.00 represented 65% of the maximum penalty for the provision of misleading payslips contravention. It was further submitted that such total sum of $15,258.00 should be further reduced by 20% on totality principles.
4. The Court does not accept the latter submission. A 20% reduction in penalty would only be appropriate in circumstances where regret and contrition had been demonstrated on the part of the respondent. That was not the case here.
5. In all the circumstances, and in the exercise of the Court's discretion, the Court considers that pecuniary penalties ought to be ordered as follows:

(a) $6,600.00 in respect of the Compliance Notice contravention; and

(b) $8,658.00 in respect of the payslips contravention.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

[1] Fair Work Ombudsman v IE Enterprises Pty Ltd [2021] FCA 60 at [58] per Anderson J.