Yes Insurance Group Pty Ltd v Fair Work Ombudsman

order made by: SNADEN J DATE OF ORDER: 28 november 2024

THE COURT ORDERS THAT:

1. The appeal be allowed in part.
2. Order 1 made by the primary judge on 25 August 2022 be set aside and, in its place, it be ordered that, pursuant to s 546(1) of the Fair Work Act 2009 (Cth) and within 28 days of the date of this order:
   1. the first appellant (below, the first respondent) pay to the Commonwealth of Australia a pecuniary penalty of $8,325.00; and
   2. the second appellant (below, the second respondent) pay to the Commonwealth of Australia a pecuniary penalty of $1,665.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SNADEN J:
3. The first appellant, Yes Insurance Group Pty Ltd ("Yes Insurance"), operates an insurance broking business aimed primarily at commercial road transport operators. The second appellant, Ms Kimonides, is its sole director and shareholder.
4. In early 2020, Yes Insurance resolved to create a new division that it came to call "Yes Assist". Its purpose was to market a roadside assistance service, also aimed primarily at commercial road transport operators.
5. On or about 26 June 2020, Yes Insurance entered into a contract of employment with Mr Taaef Hazari, pursuant to which it offered to employ - and Mr Hazari agreed to serve - in the position of "Yes Assist Sales Consultant". Mr Hazari commenced in that role in early August 2020. To assist in the performance of his duties, Yes Insurance provided him with a laptop and a mobile telephone.
6. Mr Hazari's employment did not last long. In early September 2020, he ceased working in the position of Yes Assist Sales Consultant. Although his employment was not formally terminated until the following month (October 2020), it appears that Mr Hazari and Yes Insurance quickly found themselves in dispute about his remuneration. The particulars of that dispute are not material. It suffices to note that Mr Hazari claimed not to have been (and there doesn't appear to be much dispute that he was not) paid for his first month's work as and when it became due to him. In or around mid-September 2020, he protested that reality; at one point intimating that he might sell the laptop and mobile telephone that Yes Insurance had provided to him. In early October 2020, after his employment was terminated, Mr Hazari was told that he would not receive the money that he was owed until he returned his laptop and mobile telephone.
7. Mr Hazari took his remuneration concerns to the respondent, the Fair Work Ombudsman (the "FWO"). On 9 October 2020, an employee inspector employed within her office, Mr Lam, served Yes Insurance with a compliance notice issued pursuant to s 716(2) of the Fair Work Act 2009 (Cth) (hereafter, the "FW Act"). That notice (the "Compliance Notice") recorded Mr Lam's belief that Yes Insurance had contravened a term of the Banking, Finance and Insurance Award 2020, a "modern award" that was made pursuant to, and that had statutory force under, the FW Act (to which I shall refer, hereafter, as the "BFIA").
8. The Compliance Notice asserted that Yes Insurance had contravened cl 15.1(a) of the BFIA in respect of its employment of Mr Hazari. It required that Yes Insurance take certain identified steps to remediate the contravention that it alleged - specifically, to calculate and pay to Mr Hazari what he was said to be owed under the BFIA - and to do so on or before 9 November 2020.
9. On the same day that the Compliance Notice was issued, Mr Lam spoke by telephone with Ms Kimonides. She told Mr Lam that Mr Hazari's wages would be paid once he returned Yes Insurance's equipment. That appears not to have occurred; at least not prior to 9 November 2020, by which time Yes Insurance was in default of the requirements of the Compliance Notice.
10. It was not until April 2021 that Yes Insurance paid Mr Hazari a sum of $5,299.47 (gross). A further sum of $503.45 was separately paid by way of superannuation contribution. By then, the FWO had commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2) ("FCFCOA") alleging that, by its failure to comply with the Compliance Notice, Yes Insurance had contravened s 716(5) of the FW Act; and that Ms Kimonides was accessorily involved in that contravention. By that action, the FWO sought relief in various forms, including declaratory relief and the imposition of pecuniary penalties.
11. Initially, the appellants made a full suite of admissions to the allegations that the FWO advanced against them. Upon a change of representation, they sought to resist the action on the footing that the BFIA had not applied in respect of Mr Hazari's employment (which, one presumes was to be said to have afforded Yes Insurance a reasonable basis upon which not to have complied with the Compliance Notice, which alleged otherwise). Steps were taken to have the Compliance Notice set aside but, for present purposes, there is no need separately to consider them.
12. Yes Insurance's defence did not succeed. By orders made on 16 December 2021, the FCFCOA granted declaratory relief recording its conclusions that the BFIA did apply in respect of Mr Hazari's employment, that Yes Insurance had contravened s 716(5) of the FW Act by failing to comply with the Compliance Notice, and that Ms Kimonides had been accessorily involved in that contravention. The matter was adjourned for further hearing to address what, if any, pecuniary penalties ought to be imposed in light of those conclusions. Written reasons for judgment were delivered: Fair Work Ombudsman v Yes Insurance Group Pty Ltd [2021] FedCFamC2G 365 (hereafter, the "Liability Judgment"; Judge Blake).
13. That further hearing transpired. By orders dated 25 August 2022, the FCFCOA imposed penalties of $23,310 and $4,662 upon Yes Insurance and Ms Kimonides respectively. Again, written reasons for judgment were delivered: Fair Work Ombudsman v Yes Insurance Group Pty Ltd [2022] FedCFamC2G 694 (hereafter, the "Penalty Judgment"; Judge Blake).
14. By notice of appeal dated 20 September 2022, the appellants appeal from all of the orders that are the subject of the Liability Judgment and the Penalty Judgment. Although the grounds upon which they seek to have them set aside are varied, they distil to three propositions, namely that the learned primary judge:
15. was wrong to conclude that the BFIA applied to Mr Hazari's employment;
16. reached that conclusion in a manner that involved a denial of procedural fairness; and
17. imposed penalties upon the appellants that were manifestly excessive.
18. For the reasons that follow, the appeal should be allowed in part. I accept that the penalties that the learned primary judge imposed were beyond what could reasonably be imposed in the circumstances. I am otherwise unpersuaded that his conclusion about the application of the BFIA was attended by error, or that there was any denial of procedural fairness as alleged. The penalties that were imposed by his Honour should be set aside. In their place, it should be ordered that Yes Insurance and Ms Kimonides pay pecuniary penalties of $8,325.00 and $1,665.00 respectively. There will be orders to those effects.

The statutory framework

1. Presently, there is no dispute that the Compliance Notice was validly issued pursuant to s 716 of the FW Act. That provision relevantly provided as follows: 716 Compliance notices Application of this section (1) This section applies if an inspector reasonably believes that a person has contravened one or more of the following: … (b) a term of a modern award; … Giving a notice (2) The inspector may … give the person a notice requiring the person to do either or both of the following within such reasonable time as is specified in the notice: (a) take specified action to remedy the direct effects of the contravention referred to in subsection (1); (b) produce reasonable evidence of the person's compliance with the notice. … Person must not fail to comply with notice (5) A person must not fail to comply with a notice given under this section. Note: This subsection is a civil remedy provision (see Part 4-1). (6) Subsection (5) does not apply if the person has a reasonable excuse.
2. As will by now be apparent, the matters to which the Compliance Notice referred turned upon whether or not the BFIA applied to Yes Insurance in connection with its employment of Mr Hazari (in the sense that it required that Yes Insurance afford him the entitlements recorded in its terms). Section 47 of the FW Act provides (and provided), in that regard (emphasis original): 47 When a modern award applies to an employer, employee, organisation or outworker entity When a modern award applies to an employee, employer, organisation or outworker entity (1) A modern award applies to an employee, employer, organisation or outworker entity if: (a) the modern award covers the employee, employer, organisation or outworker entity; and (b) the modern award is in operation; and (c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity. … Modern awards apply to employees in relation to particular employment (3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.
3. It is not in dispute that the BFIA was in operation at the time that Yes Insurance employed Mr Hazari. Whether it covered Yes Insurance and Mr Hazari at the time (and in respect of his employment) turns upon the application of s 48 of the FW Act, which relevantly provides (and provided) (emphasis original): 48 When a modern award covers an employer, employee, organisation or outworker entity When a modern award covers an employee, employer, organisation or outworker entity
4. A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity. … Modern awards cover employees in relation to particular employment (5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment
5. Like most (and probably all) modern awards made pursuant to the FW Act, the BFIA contains (and contained) a provision entitled, "Coverage". Relevantly, it assumed the following form:
6. Coverage 4.1 This industry award covers employers throughout Australia who are engaged in the banking, finance and insurance industry in respect of work by their employees in a classification in this award and those employees to the exclusion of any other modern award. 4.2 Banking, finance and insurance industry means the industries of banking, lending, loaning, providing credit, investment, finance, superannuation, all forms of insurance, credit unions, building societies, financial intermediaries, trustee creditors and agencies, money market dealers, credit or charge card institutions, wool broking, agribusiness and services to the above industries such as broking, trading, debt recovery, financial consulting, valuation, money changing, data processing, transaction accounts, telephone enquiries and transaction processing. … 4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work. …

The primary judgments

1. In his Liability Judgment, the learned primary judge commenced by outlining the essential background facts and the relevant issues that fell for determination before him. For present purposes, it is unnecessary to recite those observations.
2. Thereafter, his Honour considered the principles governing the interpretation of awards and, in particular, the coverage provisions of the BFIA (namely cl 4 - above, [17]). As to the coverage of the BFIA, the learned primary judge noted as follows (Liability Judgment, [15]-[19]): 15 It may be seen from [cl 4 of the BFIA] that in order for an employer and employee to be covered by the [BFIA], the following conditions must, relevantly, be satisfied. First, the employer must be 'engaged in the banking, finance and insurance industry' in 'respect of work by their employees in a classification'. Second, an employee must fall within the classification in the [BFIA]. Unless these conditions are satisfied, neither employer nor employee will be covered by the [BFIA] and the [BFIA] will not apply to them. 16 Much of the argument before me turned on whether [Yes Insurance] was engaged in the 'banking, finance and insurance industry' in respect of its Yes Assist division. As can be seen, 'banking, finance and insurance industry' is a defined term in the [BFIA]. There are at least two observations to be made about that definition. First, it is apparent that the 'banking, finance and insurance industry' is in truth not a singular industry. In reality, it comprises a diverse range of industries as set out in [cl] 4.2 of the [BFIA]. In that sense, the [BFIA] applies to multiple industries that fall within the definition set out in [cl] 4.2. Second, the [BFIA] not only applies to the named industries but to 'services to the above industries'. What then follows is a list of further industries or services which are said to service the principal industries that fall within the definition of 'banking, finance and insurance'. In this way, the number of industries or services covered by the [BFIA] is extended. 17 Within [cl] 4.2, the words 'and services to the above industries' is followed immediately by the words 'such as'. The word 'such' is frequently troublesome. The trouble arises because the phrase is open to ambiguity. It can work to restrict the scope of the noun to which it applies, or it can work in a non-restrictive manner to constitute or give examples of a class of things. The difficulty is well illustrated by reference to the Macquarie Dictionary which relevantly defines the phrase as follows:
3. such as, a. of the kind specified: people such as these are not to be trusted. b. for example: she likes outdoor sports such as tennis and football. 18 Within [cl] 4.2 of the [BFIA], I am of the view that the use of the words 'such as' was employed by the drafters in a non-restrictive sense and in order to provide examples of services that might be covered. The [BFIA] is designed to cover a variety of banking, finance and insurance industries. In that sense, it is designed to cover a diverse range of industries. The drafters did not seek to limit coverage of the [BFIA] merely to the principal identified industries. Rather, they sought to expand coverage of the [BFIA] to include those industries that 'service' the identified industries. The list of services that then follow the words 'such as' are diverse in nature ranging from 'broking' to 'telephone enquiries' and support the proposition that the words 'such as' is used in a non-restrictive sense. 19 A critical issue in the present proceeding is what is meant by the term 'insurance' and by the phrase 'all forms of insurance' within [cl] 4.2. Regrettably, the submissions of both parties did not focus on this issue as one might expect (perhaps because it was accepted that the insurance division of [Yes Insurance] operated in the 'banking, finance and insurance industry'). In my view, however, a critical aspect to determining whether [Yes Insurance] in respect of its Yes Assist division is covered by the [BFIA] is to properly interpret and understand what is meant by the term 'insurance' and the phrase 'all forms of insurance'.
4. After reciting various dictionary and common law definitions of "insurance", his Honour went on to find (Liability Judgment, [26]-[28] and [31]): 26 While these definitions vary in terms of their expression, there is not any divergence between them as to what constitutes the core elements of insurance. Those elements are: (a) the insurer procures payment from the insured (the premium); (b) in exchange for receiving the premium, the insurer undertakes or accepts or takes on liability that ordinarily falls on the insured; (c) the liability taken on by the insurer only arises on the occurrence of specified contingencies or events that have been agreed between the parties; and (d) the acceptance or undertaking by the insurer of the liability referred to above may result in the insurer having to pay damages or compensation to the insured, or cover loss sustained by the insured, or provide some other benefit to the insured. 27 Clause 4.2 of the [BFIA] however, is not just limited to covering employers engaged in 'insurance'. The [BFIA] goes further. It seeks to cover employers in the industry of 'all forms of insurance'. 'All' in the Macquarie Dictionary is defined to refer to the whole quantity of a thing or subject. 'Forms' refers to a 'definite shape; external shape or appearance considered apart from colour or material; configuration' or 'a particular structural condition, character, or mode of being exhibited by a thing: water in the form of ice'. 28 The use of the phrase 'all forms' is significant. It is clear, applying the definitions above, that the drafters intended the [BFIA] to cover all types or forms of insurance. That is apparent not just from the use of the term 'all forms'. It is apparent from the manner in which the drafters defined the 'banking, finance and insurance industry'. The drafters, for example, specified not just the 'banking' industry, but also the industries of 'lending, loaning, providing credit'. Loaning, lending or the providing of credit might reasonably be thought to be part of the 'banking' industry, but the drafters nevertheless thought it necessary to specify the coverage of the [BFIA] in these and other areas. That approach was not taken when it came to dealing with the term 'insurance'. No attempt was made by the drafters to limit the [BFIA] to particular types of insurance. Instead, the drafters used the deliberately wide phrase 'all forms'. They did so, in my view, to extend coverage of the [BFIA] to widest range of insurances. In this sense, the drafters deliberately took a different approach not only to the manner in which they dealt with the other industries specified in [cl] 4.2 of the [BFIA], but also to, for example, the approach taken by the Parliament when drafting the Insurance Act 1973. That Act, as noted, specifically excludes certain forms of insurance from the definition contained within it. … 31 I have considered the interpretation of [cl] 4.1 and 4.2 of the [BFIA] set out above. In my view, the interpretation is consistent with the principles of award interpretation referred to earlier. I have endeavoured to give the words their ordinary and usual meaning keeping in mind that the framers of the [BFIA] were likely of practical bent of mind. I have endeavoured to eschew a strict literal interpretation, to consider the words in the context, and not to interpret the clauses in a narrow or pedantic fashion.
5. The learned primary judge then turned to consider whether coverage of the BFIA extended to Yes Insurance's "Yes Assist" division. It is convenient to replicate his Honour's observations (Liability Judgment, [32]-[45]): 32 The evidence before the Court in relation to the business of [Yes Insurance] is as follows. There are two divisions within [Yes Insurance], Yes Insurance and Yes Assist. Each division has its own separate registered business name. [Yes Insurance] is the employer of persons performing work within each of the divisions referred to. 33 It is accepted by [Yes Insurance] that [it] is engaged in the insurance industry. It arranges business insurance for the commercial transport industry through underwriters. It provides a range of different business insurance products. It assists clients to make claims on the insurance policies when necessary. In order to undertake all of the above work, it holds an [Australian financial services licence]. 34 [Yes Insurance] contends that Yes Assist is not in the insurance industry. Rather, it contends that Yes Assist is in the roadside assistance and recovery service industry. The evidence before the Court in relation to the Yes Assist business was provided by Mr Clint O'Neil, who is employed by [Yes Insurance] as a Manager. In his affidavit, Mr O'Neil deposed that Yes Assist provides roadside assistance and recovery services to the commercial trucking industry. The service works in the following way. A commercial truck operator pays a 'regular fee' to Yes Assist. In exchange, the truck operator receives assistance if a truck breaks down. The type of assistance rendered depends on the type of membership held by the truck operator, but may include roadside assistance, truck repair, access to a replacement truck or vehicle and legal assistance. Mr O'Neil deposed that Yes Assist does not provide these services directly to customers, but instead contracts with independent entities who in turn provide these services to the truck operator. These independent entities then charge the truck owner for their services, and Yes Assist receives a commission. Mr O'Neil further deposed that the service Yes Assist provides is similar to the roadside assistance service provided by the [Royal Automobile Club of Victoria ("RACV")]. 35 Mr O'Neil expanded on this evidence while in the witness box. Among other things, his evidence was that: (a) The product provided by Yes Assist was initially provided to insurance customers of [Yes Insurance] on a complimentary basis. At that time, [Yes Insurance] had a contract with a company to provide roadside services and the idea was to offer the product as an enticement to generate new business (which I understand to be, new insurance business); (b) By 2020, the roadside assistance product had expanded 'to include a range of, for example, there was an Australia wide truck smash repair network. There was like for like hire vehicles in regards to a not at fault claim. There was also in regards to a legal panel, so our clients obtaining legal advice through a company called Express Co-legal, and another company called RS Chase Lawyers. These were a full suite of products that were brought to bear within Yes Assist to give the model a holistic approach, not just focussing on roadside assistance'; (c) By 2020, 'we were now charging a membership fee to be able to join that product and we were giving our existing clients the opportunity if they wanted to opt into that or if they wanted to opt out of that'. 36 I have considered the evidence of Mr O'Neil closely. Various matters stand out. Truck operators pay Yes Assist a 'regular fee'. In exchange for that fee, the truck operator receives assistance if a truck breaks down. It is implicit (if not express) in Mr O'Neil's evidence that a truck operator can only receive the benefits from Yes Assist if a truck breaks down. The level of assistance provided to the truck operators depends on the amount of the regular fee (or the type of membership) the truck operator has paid or holds. 37 At this point, it is worth observing that what is described starts to resemble a form of insurance. The 'regular fee' or 'membership' is the premium. The benefits of Yes Assist are only available in the event of a specified contingency (truck breakdown). The benefits to which a truck operator has access depends on the level of the 'regular fee' paid or membership held. That is not unlike many insurance products - health insurance, car insurance and travel insurance to name but a few, all offer different levels of benefits depending on the level of premium the customer is prepared to pay. 38 The question then arises, having regard to the various elements of 'insurance' noted earlier, whether Yes Assist is taking on some liability that ordinarily falls on the truck operator, and whether Yes Assist is providing compensation or some other benefit to truck operator. 'Liability' is defined in the Macquarie Dictionary to mean 'an obligation, especially for payment'. There is little doubt, in my view, that Yes Assist assumes an obligation for various matters when a truck breaks down that the truck operator would otherwise be responsible for if the operator had not purchased the Yes Assist product. For example, Yes Assist becomes responsible for sourcing the service provider to provide the roadside assistance. Yes Assist is responsible for contacting that service provider and sending the provider to the scene of the break down - the truck operator does not have to do this. Yes Assist become[s] responsible for identifying a vehicle hirer if asked and directing the truck operator to that service (seemingly on favourable terms given the evidence of Mr O'Neil about like for like replacement in certain circumstances). Once again, the truck operator does not have to do this. Yes Assist also becomes responsible for directing the truck operator to legal services if needed. 39 As to what benefits Yes Assist provides to a truck operator, there are at least two elements to consider. First, there are the obvious benefits that flow from what I have described in the immediately preceding paragraph. The truck operators do not themselves need to undertake all of the work described above. Yes Assist does that work for a fee. That there is a benefit to the truck operator is commercially obvious and may be inferred - the operator would not pay for the Yes Assist product if there was no benefit. Second, it is implicit in Mr O'Neil's evidence that a truck operator receives commercial benefit or some form of discount from being a member of Yes Assist and utilising its recommended service providers. So much may be seen from his evidence that Yes Assist has or arranges 'like for like hire vehicles in regards to a not at fault claim'. 40 One of the matters raised by [Yes Insurance] is that Yes Assist is not covered by the [BFIA] because it does not actually provide the roadside assistance services, but contracts with other independent entities to provide that service. I have considered that evidence. There are two aspects to note about it. First, the statement by Mr O'Neil amounts to little more than sworn assertion. He has not produced to the Court any evidence as to the contractual arrangements between truck operators and Yes Assist, and between Yes Assist and the service providers. Second, this issue also needs to be considered alongside other evidence given by Mr O'Neil that Yes Assist provides a similar roadside assistance service to the RACV. I am personally familiar with the RACV roadside assistance product, having purchased it for approximately 30 years. 41 In respect of RACV, a customer of RACV may or may not have to pay for a service provided by a technician in the event of a call out. For example, there is no charge if the technician is called out once a year (and perhaps more) to replace a flat tyre with the spare tyre from the vehicle. There is a charge, however, if the technician is called out to replace a flat battery. The amount charged is usually the cost of the replacement car battery. The customer, therefore, receives a benefit for which he or she is not directly charged. Mr O'Neil says the Yes Assist product is similar to the RACV product. On that basis, I am prepared to infer that truck operators who sign up to Yes Assist receive benefits similar to what RACV provides to its customers, and those benefits are provided in addition to the benefits I described earlier. 42 The other submission raised by the [appellants] is that Yes Assist does not operate in the industry of insurance and is not covered by the [BFIA] because it does not hold an [Australian financial services licence]. In my view, this submission does not materially advance the [appellants'] case. The terms of the [BFIA] do not confine the definition of 'insurance' only to those employers that hold an [Australian financial services licence]. While there seems to be in existence laws that regulate different forms of insurance (see for example, the Insurance Act 1973, or workers compensation legislation), none of that matters when assessing coverage under the [BFIA]. All that matters for the purposes of the [BFIA] is whether what is being offered falls within the definition of 'all forms of insurance' or whether the employer is properly considered to be a 'service' to the principal industries set out in [cl] 4.2 of the [BFIA]. 43 [Yes Insurance] sought to distinguish the Yes Assist offering by claiming that Yes Assist was not engaged in the insurance industry, but in the industry of roadside assistance. That submission ought not be accepted. It does not accord with the facts. There is no evidence that Yes Assist actually provides roadside services - in fact, the evidence is to the contrary. Further, the submission fails to address squarely the matters I have raised regarding the nature of an insurance arrangement. 44 There are a range of other factors which also independently support a conclusion that Yes Assist is in insurance or that at the very least, it is providing services to the insurance industry. The Yes Assist product was derived from the insurance product offered by [Yes Insurance]. It was initially part of the insurance offering to clients, but was removed from that product and offered as a standalone product. Further, the Yes Assist product is sold to existing customers of Yes Insurance. In that respect, it is at least in part, if not in whole, a complementary service to the insurance provided by Yes Insurance. The offering of such a complementary service is not uncommon in the industry. To use RACV as an example, it is well-known that its roadside assistance service complements its other insurance offerings such as motor vehicle insurance. Finally, there are the range of other factors that emerge from the evidence, including that Yes Assist is merely one division of [Yes Insurance's] business, that the remainder of [Yes Insurance's] business is an insurance business of approximately 12 year standing and that [Yes Insurance] is the employer of all of the employees within Yes Assist. 45 When all of the matters above are considered, in my view, [Yes Insurance's] Yes Assist division is in insurance. [Yes Insurance] is engaged in the insurance industry as defined in [cl] 4.1 and 4.2 of the [BFIA] including in respect of its Yes Assist division. The Yes Assist product is also a form of insurance that is provided by [Yes Insurance]. [Yes Insurance] in so far as it operates Yes Assist is a business caught by the phrase 'all forms of insurance'. If I am wrong about this, I would nevertheless find for all of the reasons I have set out above that [Yes Insurance] when providing Yes Assist is providing a service to the insurance industry as contemplated by the definition in [cl] 4.2.
6. His Honour then considered whether coverage of the BFIA extended to the employment of Mr Hazari, observing (Liability Judgment, [47]-[49]): 46 The classifications in the [BFIA] are set out at Schedule A. Relevantly, there are six classification levels in the [BFIA] each one of which contains descriptors pertaining to each classification along with an indicative job list. These classifications sit within an award that is industry based. A review of the classification descriptors discloses that the classifications are broad in nature and are seemingly intended to cover a range of work or occupations performed within the industry as defined. It is well understood and accepted that in determining whether an award covers an employee, an examination is necessary of the nature of the work undertaken and the circumstances in which the employee was employed to do the work. Award coverage is not to be determined simply by reference to a person's job title. 47 Mr Hazari's evidence in relation to the work he performed, and which I accept, is as follows. He was offered the position of Sales Consultant with [Yes Insurance]. He was given a list of Yes Insurance clients and was told to sell the roadside assistance product to those clients. In the course of his duties, he created infrastructure (in the form of spreadsheets) in order to keep track of sales and sales pitches, and conducted market research on relevant competitors. He then proceeded to call the customers on the list and attempted to sell those customers the roadside assistance product. 48 When Mr Hazari's evidence is considered, I find that there is a classification within the [BFIA] that covers the type of work performed by Mr Hazari. That classification is Level 3. Typical activities undertaken by an employee at Level 3 include preparing reports and recommendations within their own job function. The indicative job list identifies the role of 'sales representative with at least 12 months experience' as well as 'insurance clerk' and 'account manager'. When Mr Hazari's evidence is considered, I find that Mr Hazari, in respect of the work that he performed, was covered by the Level 3 classification in the [BFIA]. Not only did Mr Hazari perform work that is described by the classification descriptors in Level 3, but he also is a person with sales experience of 'at least 12 months'.
7. Ultimately, the learned primary judge found that the BFIA covered and applied to Yes Insurance in respect of its employment of Mr Hazari: Liability Judgment, [50].
8. By the Penalty Judgment, his Honour considered various factors relevant to the exercise of his sentencing discretion. In assessing the nature, extent and circumstances of the conduct in which Yes Insurance and Ms Kimonides engaged, the learned primary judge reasoned as follows (Penalty Judgment, [30]-[31]): 30 The subject matter of the Compliance Notice in this case arose out of a failure to pay an employee, Mr Hazari, his minimum wage entitlements. The Compliance Notice is dated 9 October 2020. Between 9 October 2020 and 3 March 2021, various communications passed between the [FWO] and the [appellants]. Despite those communications, the Compliance Notice was not complied with during this period. This was despite repeated assurances given by Ms Kimonides to the [FWO] on 9 October 2020, 26 October 2020, 5 November 2020, 18 November 2020, 26 November 2020, 4 December 2020, 11 December 2020, 16 December 2020 and on other occasions. These facts lead me to conclude that the contravention was deliberate. 31 The [appellants] sought to argue that the continued failure to comply with the Compliance Notice arose because Mr Hazari had ceased employment and failed to return information and/or equipment to the [appellants]. It is clear from the material before me that Mr Hazari had refused to return information and/or equipment to Yes Insurance. Clearly, Mr Hazari ought to have returned what was not his. His failure to do so, however, does not provide a basis for Yes Insurance to ignore either the terms of the [FW Act], or the Compliance Notice. There were other options available to the [appellants] to obtain their equipment, of which they were aware when one reads the affidavit of Mr O'Neil. The fact that they were aware of those options underscores in my view, the conclusion that the contravention was deliberate. That the contravention was deliberate is also supported by evidence Ms Kimonides gave in an earlier hearing before me, where she stated that she had been advised by lawyers and another organisation that the [appellants] needed to comply with the terms of the Compliance Notice. Despite that advice, the Compliance Notice was not complied with.
9. As to previous similar conduct, the appellants submitted to the learned primary judge that they had no history of a failure to comply with compliance notices, and that they had never had a civil penalty imposed upon them. While his Honour accepted that no civil penalty had previously been imposed upon them, he was unpersuaded that they had no prior history in that regard. An earlier compliance notice was in fact issued to Yes Insurance on 8 October 2020 (one day prior to the issue of the Compliance Notice). The 8 October 2020 notice also asserted employee underpayments and appears not to have been complied with within the required timeframe. No enforcement proceeding was commenced and it appears that the subject of the alleged underpayment was ultimately addressed.
10. No detailed evidence was led before the FCFCOA regarding the financial circumstances of the appellants. The learned primary judge was therefore unable to give active consideration to the extent to which their financial positions might bear upon what appropriate penalties should look like.
11. On the subjects of contrition and the appellants' corrective actions, his Honour noted (Penalty Judgment, [39]): 39 The real issue in this matter is not that the [appellants] took steps to clarify the issue of award coverage. The relevant issue is the lack of apology. No remorse has been expressed. The other aspect is that there is not any evidence that points to what the [appellants] have done to reduce or eliminate the risk of future contraventions of workplace laws. That assumes some significance because the [appellants] continue to operate [Yes Insurance].
12. In considering the involvement of senior management, the primary judge observed that Ms Kimonides, as sole director and shareholder of Yes Insurance, made the relevant decisions, including the decision not to comply with the Compliance Notice. That much is uncontroversial.
13. As to specific deterrence, the learned primary judge concluded that there was a need, in this case, to fashion penalties that would deter future wrongdoing by the appellants. In reaching that conclusion, his Honour noted the appellants' decision not to comply with the Compliance Notice, their apparent failure to comply with the earlier compliance notice of 8 October 2020 and their lack of contrition.
14. As to general deterrence, his Honour referred to the importance of ensuring minimum standards are complied with, and the need to send that message to all employers. His Honour found that to be of particular significance in this case, where one of the explanations proffered for the relevant non-compliance was Mr Hazari's failure to return corporate property.
15. In reaching his conclusion that each of Yes Insurance and Ms Kimonides should pay a penalty set at 70% of the maximum, the learned primary judge reasoned as follows (Primary Judgment, [43]): 43 While this might be a first offence by the [appellants], there are aggravating features to which weight might be given. They include the deliberate nature of the breach, the lack of contrition, and the prior non-compliance with a [c]ompliance [n]otice.

The grounds of appeal

1. The appellants' notice of appeal assumes an unorthodox - though not confusing - appearance. It presses for relief on appeal on the strength of six grounds, each of which comprises multiple assertions of error on the part of the learned primary judge. It is unnecessary that I should replicate them in full. Instead, they can be summarised as follows.
2. Ground one alleges that his Honour incorrectly concluded that Yes Insurance's "Yes Assist" division was engaged in the industry covered by the phrase "all forms of insurance" in cl 4.2 of the BFIA. Yes Insurance maintains that Yes Assist is not an insurance business; rather, it is in the business of roadside assistance, which the BFIA does not cover.
3. Ground two alleges that his Honour incorrectly reasoned that Yes Assist was in the nature of a business that provides "services" to the insurance industry, such that it was alternatively within the contemplation of cl 4.2 of the BFIA. Yes Insurance maintains that the roadside assistance services that it markets (and marketed) are (and were) services provided independently of insurance, such that coverage by that route did not arise.
4. Ground three alleges that his Honour ignored or gave insufficient weight to the fact that Yes Assist did not hold an Australian financial services licence (which, apparently, is a condition applicable to the conducting of insurance businesses).
5. Ground four alleges that his Honour made factual findings about the Yes Assist business that were contrary to the evidence (particulars of which I needn't here summarise).
6. Ground five alleges that his Honour made his finding that the roadside assistance services marketed by Yes Assist were "a form of insurance" in circumstances where (a) neither side alleged as much and (b) Yes Insurance was not afforded a proper opportunity to make submissions to the contrary.
7. Ground six alleges that the pecuniary penalties that his Honour imposed were manifestly excessive.
8. The FWO seeks to meet each of the appellants' six grounds. Additionally, by an amended notice of contention dated 16 July 2024, she advances two alternative grounds upon which she maintains that the orders that are the subject of the Liability Judgment were correctly made. Excluding the lengthy particulars, they are as follows (emphasis original):
9. The primary judge erred in his interpretation of cl 4.1 of the [BFIA], in that he erroneously concluded that, for an employer to be covered by the [BFIA], "the employer must be 'engaged in the banking, finance and insurance industry' in 'respect of work by their employees in a classification'" (Liability Judgment, [15]).
10. Alternatively to Ground 1, even on the primary judge's interpretation of cl 4.1 of the [BFIA], the correct enquiry in determining coverage of the [BFIA] was whether [Yes Insurance], being the relevant employer and a single corporate entity, was engaged in the insurance industry in respect of the work of its employees, having regard to all of the circumstances, including the business of [Yes Insurance's] Yes Assist division.
11. For reasons that will become apparent, I consider that it is prudent to begin my analysis by reference to the FWO's amended notice of contention. Before doing so, however, there were some preliminary matters disposed of at the hearing of the appeal to which these reasons should make reference.

Receipt of further evidence

1. At the hearing of the appeal, the appellants pressed an interlocutory application to lead further evidence, specifically in the form of an affidavit affirmed by Yes Insurance's manager, Mr Clint Jose O'Neill. That evidence concerned the nature of the services offered by Yes Insurance's "Yes Assist" division. It was said that the evidence was necessary to counter a conclusion to which the learned primary judge had been drawn - namely, that the "Yes Assist" division offered "a form of insurance" - which was said to have been raised at his Honour's initiative during the appellants' closing submissions and to have not featured as an element of the submission advanced by the FWO (there, the applicant).
2. I dismissed that interlocutory application and undertook, at the time, to address in these reasons why I was minded to do so.
3. Section 27 of the Federal Court of Australia Act 1976 (Cth) confers upon the court a discretion to receive, on appeal, evidence that was not received at trial. That discretion is not limited but is, like any other, to be exercised judicially: Sobey v Nicol and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Scheme and as Joint and Several Liquidators of the Scheme (2007) 245 ALR 389, 403 [71] (Branson, Lindgren and Besanko JJ).
4. The power that s 27 confers is a power to receive "further" evidence. It is not restricted to the receipt of "fresh" evidence (that is, evidence of which a party was not aware at the time of the trial and could not have obtained with reasonable diligence): Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3, [74] (North, Barker and Katzmann JJ). Nonetheless, the fact that the "further evidence" is not "fresh evidence" is a consideration material to the exercise of the discretion: August v Federal Commissioner of Taxation (2013) 94 ATR 376, 398-9 [116] (Siopis, Besanko and McKerracher JJ).
5. Here, I consider it to be dispositive. The nature of the "Yes Assist" division was squarely a matter of significance at the trial. Indeed, at the hearing of the appeal, the following exchange occurred: HIS HONOUR: The Ombudsman has come along and said, "Here is a compliance notice" --- MR MANOS: With the award. HIS HONOUR: "Under s 716, you're now obliged to comply with it, unless you've got a reasonable excuse". MR MANOS: Yes. HIS HONOUR: That's plainly for an employer then to establish. MR MANOS: Well, it's not just the reasonable excuse avenue. The route that we sought to challenge it was, if the award is wrong, then the notice ..... cancelled. And there was a there's a provision in the [FW] Act that deals with that. HIS HONOUR: Sorry. What section are you talking about? MR MANOS: It's in the list of authorities. It might have been the review of compliance notice, 717. HIS HONOUR: Yes. So that is what I had understood. You had initially sought to defend the allegation of non-compliance. MR MANOS: Yes. HIS HONOUR: And then also, and perhaps in a related or collateral sense, had sought to contend that the compliance notice should be set aside […] in each case, on the basis that the award - the Banking Finance Industry Award did not cover or apply to Mr Hazari. I'm not sure how far that goes. I think that, in each case, would be for an employer to establish. You would either need to establish that you had a basis for overturning or setting aside the compliance notice as an applicant under s 717, or, alternatively, a reasonable basis for not complying with a compliance notice as a respondent to an action under 716. MR MANOS: Yes. HIS HONOUR: Either way, you would, and indeed did, lead evidence about the nature of Yes Assist's business. MR MANOS: Yes, we did. We did. HIS HONOUR: And you would do so for the purposes of establishing that it was a business that fell outside the contemplation of the Banking and Finance Industry Award. MR MANOS: Exactly…
6. The appellants' complaint is that they were, to descend to a colloquialism, blindsided by the learned primary judge's suggestion that roadside assistance services could be thought of as "a form of insurance". That complaint is the foundation of their fifth ground of appeal (above, [37]) and it can be dealt with in that context.
7. For present purposes, I was not persuaded that the interests of justice should favour the receipt of the further evidence. It was evidence that could have been led below, which was plainly relevant to a subject that was always understood to arise for the court's consideration.

Leave to raise a ground not argued below

1. Additionally at the hearing of the appeal, the appellants sought leave to advance an argument that was not advanced before the learned primary judge: namely, that the "Yes Assist" division (or Yes Insurance, through the activities of that division) was covered by the Vehicle Repair, Services and Retail Award 2020 (the "VRSRA").
2. The significance of the point might immediately be apparent. If it was the case that the VRSRA applied to Yes Insurance in respect of its employment of "Yes Assist" employees (including Mr Hazari), it would (or could) follow that the BFIA had no such application, such that the foundation upon which the Compliance Notice was erected would fall away. None of that was controversial.
3. Clause 4 of the VRSRA deals with its coverage. The award is expressed to cover undertakings that are "…principally connected or concerned with the vehicle repair, services and retail industry". That industry is defined to include "any operation concerned with roadside/mobile service…"
4. Whether Yes Insurance's undertaking answers that description is difficult to know. It is to be borne in mind that its insurance division long pre-dates its "Yes Assist" division. Which might qualify as the "principal" operation would be a matter for evidence; and that was not obviously a question that was explored at the trial.
5. Moreover, the classification within the VRSRA that the appellants identified as the one under which Mr Hazari had been employed was "Salesperson-other", which fell within what the VRSRA identified as a "Level 4" classification. In order that an employee might so qualify, the award contemplates that they would (or might) possess certain training or qualifications. Again, it is not apparent that the evidence led below descended to explore those issues insofar as concerned Mr Hazari.
6. It seems (and seemed) to me all but inevitable that, had it been a live issue at the trial, the potential application of the VRSRA to Mr Hazari's employment might well have involved the receipt of evidence additional to what was, in fact, led. That is (and was) all but fatal to the appellants' application. On that, regard might be had to the observations made in Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447, 461 [51] (Gleeson CJ, McHugh and Gummow JJ) (references omitted): It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination.
7. Presently, the circumstances do not warrant a grant of leave to permit the appellants to raise on appeal a point that was not advanced below. For that reason, the request for leave to do so was declined.
8. I move, then, to address the grounds identified in the notice of appeal and amended notice of contention (albeit in reverse order).

NOC ground one: Yes Insurance is in the insurance industry

1. By the first ground of her amended notice of contention, the FWO submits that the learned primary judge's conclusion about the application of the BFIA was correct because Yes Insurance was, in fact, an employer engaged in the insurance industry and Mr Hazari was engaged in a classification for which the BFIA provided.
2. It is trite to observe that Mr Hazari's employer was Yes Insurance. It was the legal entity with whom he contracted; indeed, the only relevant legal entity that carried out the commercial operation within which he was employed. None of that is controversial.
3. It is similarly uncontroversial that Yes Insurance was (and is) engaged in the insurance industry. Its insurance division was unambiguously so engaged. What is advanced in opposition to the amended notice of contention is the proposition that the activities of the "Yes Assist" division were not insurance activities.
4. The FWO submits that, even assuming that to be so, it does not alter either of the two realities just established. The "Yes Assist" division was not Mr Hazari's employer, nor was it possessed of legal personhood. Even assuming that the activities undertaken in its name were not activities fairly associated with the insurance industry (a proposition with which, for the reasons touched upon briefly below, I am inclined to agree), it remained the case that Yes Insurance (that is, the sole juristic person of relevance) was an employer in that industry.
5. It was also the case - and, again, this is uncontroversial - that the BFIA made provision for a classification that unambiguously contemplated the kinds of work that Mr Hazari was employed to perform.
6. All of that accumulates to a point that recognises the application of the BFIA to Mr Hazari's employment. The BFIA was in operation. It was expressed to cover employers in the insurance industry. Mr Hazari's employer, Yes Insurance, was such an employer. Mr Hazari's work involved tasks that sufficed to constitute him as falling within a classification for which the BFIA made provision. The BFIA, therefore, applied in respect of Mr Hazari's employment. Respectfully, the learned primary judge's conclusion to that effect was correct.
7. I should say something about the appellants' submission that an employer might simultaneously be covered by an award in respect of some sales employees but be award-free in respect of others. The submission was straightforward enough: Yes Insurance's insurance division was unambiguously engaged in the insurance industry; but its "Yes Assist" division was not. It was said that employees who worked in that ("Yes Assist") division, therefore, were not employees in respect of whom the BFIA covered Yes Insurance.
8. No authority was cited in support of that proposition and I am not aware of any that supports it. It is plainly the case that an employer might simultaneously operate in multiple industries. The authority to make good on that proposition dates back at least to R v Drake-Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51, 57 (Latham CJ, with whom Rich and Williams JJ agreed in the result). Historically, that potential has required courts to prioritise the application of one award over another (see, for example, Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 (Sheldon J) and the countless subsequent authorities that have referred to it, including those that I identified in Michael v Network Ten Pty Limited [2023] FCA 1091, [63]-[64]); or, in analogous contexts, to decide in certain contexts that one union is entitled to represent employees to the exclusion of another (as to which, see Health Services Union v Catering Industries (NSW) Pty Ltd (2023) 412 ALR 18, 352-6 [63]-[75] (Katzmann, Snaden and Raper JJ) and the authorities there cited).
9. An employer that operates in multiple industries and, thereby, attracts the coverage of multiple awards will, in respect of its employment of a particular employee, attract the application of the award that contains the classification according most closely with the major and substantial aspects of his or her employment. If, for example, there were here a modern award covering employers engaged in the roadside assistance industry (so defined in a way sufficient to include the activities of the "Yes Assist" division), then the "major and substantial" test would almost certainly serve to preclude the application of the BFIA to Mr Hazari's employment.
10. That would be so notwithstanding that the relevant employer, Yes Insurance, remained an employer in the insurance industry. Whether an employer is engaged in an industry is a binary proposition. One could not suggest that Yes Insurance is an employer in the insurance industry for some purposes but not for others. It either is or it is not. In assessing whether it is, the court must characterise the nature of the business that it operates. It is of no moment that it operates in two industries (insurance and roadside assistance). The assessment is not of the activities of the employer in totality: R v Cohen; Ex parte Motor Vehicle Accidents Insurance Board (1979) 141 CLR 577, 589 (Mason J, with whom Gibbs, Stephen and Aickin JJ agreed), 592 (Murphy J). For present purposes, there can be little doubt that Yes Insurance operates in two industries, namely the insurance industry and the roadside assistance industry.
11. Here, there was no suggestion advanced before the primary judge that Yes Insurance was covered by any other award in respect of its employment of those that it engaged to work in its "Yes Assist" division. All that was put was that the BFIA did not cover or apply to the "Yes Assist" division in respect of Mr Hazari's employment.
12. That submission cannot be sustained. Modern awards cover and apply to employers, not the "divisions" by which their activities are organised. For present purposes, the coverage and application of the BFIA turned upon two things: first, whether Mr Hazari's employer was "engaged in the banking, finance and insurance industry"; and, second, whether the work that he performed was of a kind described in one of that award's various work classifications. Answering each of those questions affirmatively - as they had to be - the result is inescapable: the BFIA covered and, therefore, applied to Yes Insurance in respect of its employment of Mr Hazari.
13. That was the conclusion upon which the Liability Judgment rested (albeit not the pathway that his Honour took to get there). Whether or not his Honour's path of reasoning was sound, I respectfully consider that his conclusion was correct.
14. That conclusion stated, nothing further need be said of the amended notice of contention.

Appeal grounds 1-4

1. Strictly, nothing need be said about appeal grounds one through five, either (each of which charges the learned primary judge with having erred by making the orders that are the subject of his Liability Judgment). The conclusions that I have reached as to the FWO's amended notice of contention are dispositive of those grounds and, in the interests of "judicial economy", the court need not descend further: Boensch v Pascoe (2019) 268 CLR 593, 600-1 [7]-[8] (Kiefel CJ, Gageler and Keane JJ), 629-30 [101] (Bell, Nettle, Gordon and Edelman JJ).
2. Nonetheless, in deference to the efforts expended in agitating and defending them, I wish to offer some brief observations concerning grounds one through four. I shall deal separately with ground five.
3. At their core, grounds one through four are premised upon the submission that the "Yes Assist" division of Yes Insurance's business did not operate in the insurance industry. Much ink was spilled and effort expended in seeking to persuade the learned primary judge and this court on appeal that the boundaries of that industry are beyond the nature of the services that "Yes Assist" provides. Both courts were treated to detailed and skilful submissions concerning the nature of insurance.
4. It is not necessary that I should summarise those submissions, nor make reference to the authorities - both modern and otherwise - to which the parties referred. I accept that roadside assistance and insurance are distinct industries. At a headline level (I observe not wishing to downplay the undoubted complexity that attends any attempt to define "insurance"), I would think that there is much to the view that one "…engages in insurance when one enters into a contract of indemnity": R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, 580 (Barwick CJ, albeit in dissent as to the result in that matter). The provision of a service connecting operators whose vehicles have broken down with repairers who might get them going again is not a form of insurance that accords with the natural boundaries of that concept. It is, rather, a form of contingent service provision: that is, the provision of a pre-paid service to customers who find themselves in need of it. It is not unlike an ongoing retainer as between a client and a barrister.
5. So to observe is not necessarily to doubt that it might be a service that is provided to insurers; but it is evident enough from the findings of the learned primary judge that "Yes Assist" provides what is, by any other name, a repair broking service, not an insurance product.
6. To the extent that his Honour found to the contrary, I would respectfully disagree.
7. I would also have occasion to doubt, again with respect, that the Yes Assist product amounts to a service provided to the insurance industry. It is to be recalled that the BFIA's coverage clause extends the award's coverage to "…the industries of…services to [amongst others, the insurance industry] such as broking, trading, debt recovery, financial consulting, valuation, money changing, data processing, transaction accounts, telephone enquiries and transaction processing". The reference to "services to [insurance]" must be read ejusdem generis with the examples that the clause proceeds to list. Plainly, the clause does not purport to bring within the umbrella of coverage any service provider whose clientele includes insurance businesses. To do so would be self-evidently absurd.
8. There is, of course, a very plain connection between Yes Insurance's "Yes Assist" division and the pre-existing insurance division out of which it appears to have emanated. Similarly, there could be no doubt that the two products - insurance and roadside assistance - are complementary, in the sense that customers having a need for one may also have a need for the other. The evidence on that score was clear enough: roadside assistance was conceived of as an additional service of which insurance customers might avail themselves if prompted.
9. That, however, is not sufficient to constitute roadside assistance as falling within what the BFIA contemplates as an industry that provides services to the insurance industry. As the evidence before the learned primary judge made clear, roadside assistance services, however complementary, are nonetheless standalone services available to customers with or without insurance. Most significantly, they are services that are provided to transport clients; not to insurers. They are not ancillary to insurance in the way that (for example) an insurance-broking or claim-assessing business might be.
10. There is, then and with respect, reason to doubt the learned primary judge's conclusion that the business undertaken by Yes Insurance's "Yes Assist" division sufficed to situate it in the insurance industry or a services industry allied thereto. For reasons already recorded, it is unnecessary that I need say more on that topic.

Appeal ground 5

1. The only remaining issue, insofar as concerns the Liability Judgment and the grounds of appeal that seek to challenge it, is whether the learned primary judge reached the conclusions that he reached about Yes Insurance's business in a way that bespoke a denial of procedural fairness. That is the gravamen of appeal ground five, to which attention should now turn.
2. By appeal ground five, the appellants complain that the learned primary judge drew a conclusion - namely, that roadside assistance is "a form of insurance" - that was not urged upon him by their opponent, nor raised for consideration until the point of final submissions. I was taken to the transcript of the proceeding below. There does not seem to be anything controversial about the nature of the appellants' complaint: it is the case that the FWO did not contend that Yes Insurance's "Yes Assist" division provided services akin to "a form of insurance" and that that notion emerged for the first time at his Honour's instigation during closing submissions.
3. Whether or not that bespeaks any want of procedural fairness turns partly - perhaps predominantly - upon the manner in which the parties responded to his Honour's observation. I should preface what follows by noting, if it needs to be noted, that I should not be understood to imply any criticism of anybody. Nonetheless, when his Honour made the observation that he made, it was not met with the resistance that is now advanced. Counsel for the appellants did not, for example, contend that, for want of exploration in the evidence or written submissions, it would not fairly be open to the court to make the finding that his Honour foreshadowed. On the contrary, he sought to address what his Honour had raised as diligently as the circumstances permitted. In doing so, he undertook to provide the learned primary judge with some additional authorities, which later occurred.
4. Had the learned primary judge reached his conclusion about roadside assistance being "a form of insurance" without any notice to the appellants, the suggestion that there had been a denial of procedural fairness would be easier to substantiate. Here, however, it was squarely raised for counsel's consideration. If there was a need for further evidence or some reason why the conclusion ought not to be drawn, that was the time to say so: Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114, [65] (Katzmann, Snaden and Raper JJ).
5. Instead, counsel appears to have addressed his Honour's observation as best he could on the limited notice that he was afforded. Respectfully, if he needed more of an opportunity to address it, he ought to have said so. Acquiescing in the way that he did - and, again, I intend no criticism by that turn of phrase (and well understand the difficult forensic choice with which counsel was faced) - it cannot be said that there was any denial of procedural fairness.
6. It follows that, had it been necessary to address it, I would not have upheld the appellants' fifth ground of appeal.

Appeal ground 6: Manifest excess

1. By their final ground of appeal, the appellants submit that the learned primary judge erred by imposing upon them penalties that were manifestly excessive. For the reasons that follow, that submission should be accepted.
2. By the submissions that she advanced before him, the FWO urged the learned primary judge to impose upon each of the appellants pecuniary penalties set at "70%-80%" of the maximum available. His Honour was persuaded to do so, settling at the lower boundary of that range. His reasons for doing so have already been rehearsed (above, [24]-[31]).
3. The principles relevant to identifying manifest excess in a pecuniary penalty are not materially in doubt. They were the subject of observation in Australian Building and Construction Commissioner v Australian Workers' Union (2022) 406 ALR 20 ("ABCC v AWU"), 33 [74] (Moshinsky and O'Callaghan JJ, with whom I agreed in the result, without expressing a view on the point in issue). Their Honours there endorsed (in obiter) what Greenwood, Middleton and Foster JJ had observed in Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172, [53]: To the extent ASIC says the penalty was 'manifestly inadequate', the inadequacy must be 'obvious, plain, apparent, easily perceived or understood and unmistakeable. It must be so far outside the range of reasonable discretionary judgement as to itself bespeak error': Hanks v The Queen [2011] VSCA 7 at [22]; Zerafa v The Queen [2013] VSCA 42 at [41]. Mere disagreement, or a difference of opinion, between an appellate court and a primary judge over the penalty imposed is not sufficient.
4. Moshinsky and O'Callaghan JJ elaborated in ABCC v AWU (at 34 [76]): We note that reasonable minds will often differ as to the appropriate pecuniary penalty for the contravention of a civil penalty provision. Given this, a ground of appeal contending that a penalty imposed by a judge is manifestly inadequate (or manifestly excessive) may be difficult to establish in circumstances where the judge has had regard to all relevant considerations and not had regard to any extraneous considerations.
5. It is "…well settled that a penalty set at a level that is manifestly excessive having regard to the nature of the conduct in respect of which it is imposed is one that involves a miscarriage of the court's discretion": Airservices Australia v Civil Air Operations Officers' Association of Australia (2022) 295 FCR 36 ("Airservices Australia"), 70 [115] (O'Callaghan J, with whom I agreed; Bromberg J dissenting in the result but not as to this point of principle). In Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) (2023) 299 FCR 334, 348 [37] (Charlesworth, Snaden and Raper JJ), the proposition was put as follows: A penalty set at a level that is manifestly excessive is one that fails to strike a reasonable balance between deterrence and oppressive severity; and a penalty that fails to strike such a balance is one that is either manifestly excessive or manifestly inadequate.
6. There are, I think, some features of this matter that bear repeating for present purposes. The Compliance Notice was not ambiguous. It required things to be done and they were not done. Although, later, the appellants came to agitate the view that the BFIA did not apply to Mr Hazari's employment, that was not advanced at the time as a reason why the Compliance Notice could lawfully be ignored. Moreover, even if the proposition rang true, it did not stand as a reason why Yes Insurance could lawfully withhold from Mr Hazari the moneys that it owed him contractually, if not by force of a different statutory instrument.
7. There is no doubt that those moneys ought not to have been withheld and the appellants do not contend otherwise. Nonetheless, there are some other features of this case that contextualise - though, to be very clear, do not excuse - what transpired. The circumstances in which Mr Hazari's employment came to an end are mysterious, to say the least. That he would intimate, within a matter of weeks after commencing in his new role, that he might sell the expensive equipment that had been given to assist in the discharge of his role is highly unusual. It can hardly be doubted that the appellants had proper occasion to be concerned about the return of that equipment (and, no doubt, the information that was stored on it). It appears that they considered that there was some leverage to be gained in that respect from withholding what Mr Hazari was owed.
8. The appellants did not ever suggest that they were entitled not to pay Mr Hazari the sum that ultimately was paid to him. On the contrary, the debt was acknowledged. Albeit after a lengthy and undue delay, it was paid to him - indeed, it was paid prior to the point that the FCFCOA was called upon to pronounce any judgment. Whether it was paid at the same time as the laptop and mobile telephone were returned is unknown; but nor is that material.
9. The appellants, it is accepted, are first-time (and, one should hope, one-time) contraveners of the FW Act. Their contraventions inhere in Yes Insurance's failure to comply with a notice that required it to calculate and pay what, on any view, was not a substantial sum of money (appreciating, as I do, that it might well have been significant to Mr Hazari).
10. Furthermore, although it did not find (and has not found) favour either with the FCFCOA or this court, the appellants' submission about the application of the BFIA was not inherently untenable or ambitious beyond reason. On the contrary, the contention that the "Yes Assist" division of Yes Insurance's business was not involved in the insurance industry is compelling. That that might be so is, as I have already found, insufficient to constitute Yes Insurance otherwise than as an employer engaged in the insurance industry; but that reality inheres as a function of complex principles of law that have emerged from jurisprudence developed over many decades.
11. The penalties for which the FWO agitated were, by some margin, wholly outside the range of sentencing options that were properly available. I would not contemplate a penalty anywhere close to 80% of the maximum available for cooperative (or at least partly cooperative) first-time contraveners whose conduct, although wrong, involved a small sum, the non-payment of which was voluntarily corrected and not wholly without extenuating explanation.
12. It is difficult to fathom how an agency of the Commonwealth would seek penalties in this case that bear any resemblance to (indeed, might, in some cases, exceed) those that it seeks, from time to time, as against recidivist corporate contraveners whose apparently unrepentant conduct visits far greater commercial damage. In the circumstances, the penalties for which the FWO agitated were extreme. This is not the first time that I have had occasion to say so: Fair Work Ombudsman v Australian Workers' Union [2020] FCA 60, [67].
13. With great respect to the learned primary judge, penalties set at 70% of the maximum available were well beyond what was necessary to visit the deterrent effect that is the sole objective that the imposition of pecuniary penalties is meant to achieve. It follows that I accept that his Honour's discretion miscarried in a way that bespeaks error, which this court on appeal should correct. The penalties that were imposed should and will be set aside.
14. It is "…obviously more efficient for this court on appeal to re-exercise the discretion, not remit the matter to the primary judge": Airservices Australia, 71 [119] (O'Callaghan J, with whom I agreed; Bromberg J dissenting in the result). That is the course that should be followed. In doing so, I should be careful, again, not to recognise for the appellants' benefit any excuse for their conduct. Respectfully, the learned primary judge was correct to reason that their conduct warranted the imposition of pecuniary penalties; and there can be no doubt that there are circumstances that serve to require the imposition of more than what might typically be associated with non-compliance of a demand to calculate and pay the small amount that is at the heart of this matter.
15. I consider that penalties set at 25% of the maximum available are appropriate to here realise the deterrent effect that is the sole objective of imposing pecuniary penalties. I have reached that view having taken account of the matters to which I have referred above and, in particular, the following matters, namely:
16. the nature of the appellants' conduct (inhering, as it did, in their failure without reasonable excuse to comply with the Compliance Notice, specifically by calculating and paying the small amount of money that was owed to Mr Hazari);
17. the circumstances that serve as surrounding context for it (including Mr Hazari's unusual disinclination to return their property);
18. the appellants' early acceptance of liability; and
19. the appellants' decision voluntarily to correct the non-payment that the Compliance Notice alleged.
20. Penalties fashioned at that level will serve as a deterrent not merely to the appellants but to those who might be minded to replicate their conduct in the future.

Conclusion

1. The learned primary judge's penalty orders should (and will) be set aside and, in their place, pecuniary penalties set at 25% of the maximum - or $8,325.00 and $1,665.00 - should be imposed respectively upon Yes Insurance and Ms Kimonides. The appeal should otherwise be dismissed. It would seem, by operation of s 570 of the FW Act, that there should be no order made as to costs; but, if I am wrong about that, the parties can let me know by application made in the usual way. I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.